[CITE: Harston v. Bortner, 14 CADDNAR 121 (2016)]
[VOLUME 14, PAGE 121]
Cause #: 14-114W
Caption: Harston v. Bortner
Administrative Law Judge: Jensen
Attorneys: Kuchmay, Romary (Harstons); Gooden (Bortner); Wooding (DNR)
Date: November 13, 2016
[Editor’s Note: The FINAL ORDER follows the Findings of Fact and Conclusions of Law.]
FINDINGS OF FACT AND CONCLUSIONS OF LAW
Historical Background and Jurisdiction
1. On August 4, 2014, the Petitioners, Matthew Harston and Sandra Harston (collectively referred to as “the Harstons”), filed correspondence with the Natural Resources Commission (“Commission”) expressing that they are the owners of “two Lots (Lot 13 and 14)” that front on Hackenburg Lake in LaGrange County as well as owning two additional Lots that do not front on the lake that “have access to the east five feet of Lot 14 on Hackenburg Lake (which is adjacent to the property we also own). The correspondence alleges that the Respondents, Chad Bortner and Erica Bortner (collectively referred to as “the Bortners”) had initially placed a pier on the Harstons’ property and after being asked to remove the pier relocated “it to the five foot easement to the east of our lake front property…but angled the pier so it is in front of our lake front property.” The correspondence provided the Harstons’:
1) Request to initiate a proceeding to administrative law judge to seek an order that the pier on the east side of Lot #14 on Hackenburg Lake in LaGrange County be removed.
2) Request to review Riparian Rights on behalf of Matthew Harston and Sandra Harston who are the property owners of Lot 1, 2, 13, and 14 on Hackenburg Lake in LaGrange County.
2. Hackenberg Lake is a public freshwater lake. Indiana Code § 14-26-2-3, Indiana Code § 14-26-2-24 and Natural Resources Commission, Information Bulletin # 61 (Fourth Amendment) “Listing of Public Freshwater Lakes”, October 1, 2014.
3. The Commission possesses jurisdiction over the parties and over the subject matter of this proceeding.
4. With respect to the subject matter and the parties to this proceeding the Commission serves as the “ultimate authority”. Indiana Code 4-21.5-1-15 and 312 IAC 3-1-2.
5. A prehearing conference was scheduled for and conducted on September 5, 2014. The Harstons represented themselves and the Bortners were represented by counsel, William W. Gooden. The Department attended by counsel, Joy Grow.
6. During the prehearing conference, the Bortners filed “Respondents’ Counter-Petition” seeking the Commission deny the Harstons’ request for an order to remove the pier for the reason that, as relevant to this proceeding, the Bortners are “the fee simple owners of Lots 4 and 5 in the Feller’s First Addition to Hackenburg Lake” that do not front on the lake but are “benefited by an easement granting ingress and egress to Hackenburg Lake for the purpose of, among other things, mooring boats.”
7. The Department of Natural Resources (“Department”) filed its “Petition to Intervene” on September 10, 2014, which was granted on September 11, 2014.
8. On November 11, 2014, Jason M. Kuchmay, counsel, filed his appearance on behalf of the Harstons and on January 29, 2015, Adrienne C. Romary, an associate of Kuchmay, also filed her appearance.
9. During the prehearing conference it became apparent that additional property owners may claim an interest in the easement referenced by the Bortners and the Harstons. A schedule was established for identifying potentially impacted property owners.
10. After the parties conducted additional property title research, on June 16, 2015, the Bortners notified the Commission of their belief that no other lot owner had any claim or interest in the easement and sought to have this matter scheduled for administrative hearing. At a subsequent status conference, the Harstons acquiesced to the Bortners’ report with respect to the need to join additional necessary parties. In lieu of scheduling an administrative hearing, the Harstons sought the opportunity to file motions for summary judgment, to which the Bortners concurred.
11. At the conclusion of the parties’ submission of briefs and designated evidence in support of their respective motions for summary judgment, Administrative Law Judge Jensen issued “Findings of Fact and Conclusions of Law with Interlocutory Order on Competing Motions for Summary Judgment” (“Summary Judgment Order”) on November 18, 2015. The Summary Judgment Order is incorporated by reference as Attachment A as if set out fully in this Order.
12. Resolution of the matters remaining in controversy following summary judgment required the joinder of additional parties.
13. Those persons who could reasonably be identified as having a potential interest in the easement property were joined as parties to this proceeding and provided personal service of notice at their last known addresses. Those persons are:
a. Vonda Akey, Treasurer, LaGrange County, Indiana
b. Garnet O. Dunn and Mable M. Dunn
c. John D. Yates
d. John D. Jordan
e. Joseph Wright and Michelle Wright
f. Louis Gyovai and Nancy Gyovai
14. Unidentifiable persons and additional persons identified as having a potential interest in the easement property for whom a service address was not known and was not obtainable were provided notice by publication. Those persons are:
a. Garnet O. Dunn and Mable M. Dunn[1]
b. Unknown individuals currently owning property previously owned by Vern C. and Mary E. Feller as of May 29, 1953
c. The unknown heirs of Vern C. and Mary E. Feller.
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15. The joined parties were advised as follows:
If you fail to assert your interest as indicated herein by the date stated above, the above-captioned cause shall proceed to adjudication, and any and all rights and/or interest that you claim in the subject real estate may be eliminated.
Service was made by U.S. Mail to the persons identified in Finding 13 on January 27, 2016 and by publication upon persons identified in Finding 14 on January 29, 2016. See Notice to and Joinder of Interested Parties and Order to Assert Interest or Respond – Notice by Mail and Notice to and Joinder of Interested Parties and Order to Assert Interest or Respond – Notice by Publication.
16. No person joined, whether receiving notice by mail or by publication asserted an interest in the property at issue.
17. An administrative hearing was scheduled and conducted on March 8, 2016.
18. The parties were provided until March 29, 2016 to file post hearing briefs.
19. Post hearing briefs were filed on behalf of both the Harstons and the Bortners on March 29, 2016.
I. Matters Remaining in Dispute Following Summary Judgment
20. The matters identified as remaining in dispute following summary judgment were stated as:
a. Do the Bortners and/or the Harstons hold the rights under the easement to use the riparian rights associated with the Dunn Property?
b. Are there other property owner(s), in addition to the Dunns, the Bortners and/or the Harstons, who are authorized to exercise riparian rights associated with the Dunn Property?
c. In reserving the easement across the Dunn Property, including the right to land and moor boats, was it the intent of the Fellers to extend a pier from that property?
d. What is the appropriate riparian zone associated with the Dunn Property and the Harston Shoreline Property?
e. If the extension of a pier was contemplated by the easement, will that pier require the issuance of a group pier permit by the Department under 312 IAC 11-4-8.
Summary Judgment Order, Findings 69 through 73.
II. Real Property at Issue
21. On May 29, 1954, Vern C. and Mary E. Feller (collectively referred to as “the Fellers”), conveyed to Garnet O. and Mabel M. Dunn (collectively referred to as “the Dunns”), Lot 14,
reserving along the east side…at least five (5) foot right of way running north and south for the purpose of ingress and egress to and from the margin of the shore line of Hackenburg Lake, for themselves, their representative agents, heirs and assigns, as well as any subsequent grantees of subsequent owner or owners of real estate now owned by the grantees, and further the right to land and moor their boats.
(Hereafter referred to as “the Feller Easement”).
22. The Dunns, on June 29, 1955, sold Lot 14, “except five (5) feet east side”.
23. In the Summary Judgment Order it was noted that the Harstons’ deed to Lot 1 and Lot 2 in Fellers First Addition to Hackenburg Lake (Hereafter referred to as “the Fellers Addition”) references an easement for “ingress/egress over Lot 14 in Fought’s Addition to Hackenburg Lake Resort as set out in Deed Instrument No 84-7-140.” Findings 32 and 33, emphasis added. On summary judgment, there was no evidence of record referencing “Fought’s Addition to Hackenburg Lake Resort” within the designated evidence on the parties’. The lack of evidence on this issue caused a degree of uncertainty the significance of which could not be ascertained at that time.
24. Evidence admitted during the administrative hearing clarified that Lot 13 and Lot 14 are actually situated in the Fought’s Addition to Hackenburg Lake Resort (hereafter referred to as “Fought’s Resort”). Bortners’ Exhibit 8.
25. Fought’s Resort, consisting of 28 Lots, is situated between a platted road to the south and the shoreline of Hackenburg Lake to the north. Lot 13 and Lot 14 are located near the center of Fought’s Resort. Bortners’ Exhibit 8. Fellers Addition consists of 12 Lots and is located on the south side of the Fought’s Resort platted road. The Feller Addition Lots are not located on the shore of Hackenburg Lake[4] Bortners’ Exhibit 9.
26. The Harstons are the current owners of Lot 13 and Lot 14 “excepting 5 feet off the East side…” in Fought’s Resort having purchased that property on October 27, 2000. The Harstons are also the owners of Lot 1 and Lot 2 in Fellers Addition. Bortners’ Exhibit 9.
27. The Bortners are the owners of Lot 4 and Lot 5 in Fellers Addition.
28. The Dunns remain the owners of the five foot strip off the east side of Lot 14 in Fought’s Resort (hereafter referred to as “the Dunn Property”).
29. The Bortners’ Lot 4 was sold by the Fellers on July 19, 1954, which evidences the Fellers’ ownership of this Lot on May 29, 1954 when the Feller Easement over the Dunn Property was reserved for the benefit of future owners of property owned by them on that date. By virtue of their ownership of Lot 4, the Bortners are entitled to use the rights reserved by the Feller Easement.
30. The Harstons’ right to use the Feller Easement over the Dunn Property is not disputed. Testimony of Chad Bortner.
31. The shoreline associated with Lot 13 and the western portion of Lot 14 in Fought’s Resort, owned by the Harstons, is 95 feet long.
32. While the instruments conveying title to Lot 4 to the Bortners does not reference the Feller Easement there is no evidence in the record to support a conclusion that the rights established by the Feller Easement have been extinguished.
33. In or near 1989, the then current owners of each Lot 1, Lot 2, Lot 3, Lot 4, and Lot 5 executed quitclaim deeds terminating their interest in the Channel Easement, which facilitated the Harstons’ ability to fill the channel. Harstons’ Exhibit 11C, Summary Judgement Order Findings 40, 41 and FN3.
34. The termination of rights to the Channel Easement does not impact the Feller Easement burdening Dunn Property. See Summary Judgment Order, Finding 41.
35. The Harstons and the Bortners possess rights under the Feller Easement to use the Dunn Property “for the purpose of ingress and egress to and from the margin or shore line of Hackenburg Lake…and the further right to land and moor their boats.”
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III. Only the Bortners and the Harstons are authorized to exercise riparian rights flowing from the Feller Easement associated with the Dunn Property
36. The persons joined to this proceeding and notified by either personal service, publication or both, as discussed in Findings 13 through 16, are believed to include each of the present owners of Lots in Fellers Addition that may have been granted easement rights under the Feller Easement.
37. The evidence established that real property taxes assessed to the Dunn Property have not been paid to the LaGrange County Treasurer and the property was subject to disposition at tax sale in 2015[5]. Summary Judgment Order, Finding 29.
38. The Bortners and the Harstons possess rights under the Feller Easement to the Dunn Property.
39. It was stated in the Summary Judgment Order that “any holder of easement rights over the Dunn Property would share the use of the correlating riparian rights with the Dunns.” This conclusion requires clarification.
40. The Feller Easement constituted a reservation of the riparian rights “for themselves, their representative agents, heirs and assigns, as well as any subsequent grantees of subsequent owner or owners of real estate now owned…” The language creating the Feller Easement identifies, with specificity, the persons entitled to use the rights created, which did not include the Dunns.
41. To the extent the Dunns retain authority to use the riparian rights associated with the Dunn Property, the Dunns’ exercise of those rights must be subordinate to the rights of the Bortners and the Harstons.
IV. What is the appropriate means of establishing the riparian zone line between the Dunn Property and the Harstons’ Shoreline Property?
42. The east onshore property boundary of the Harstons’ western portion of Lot 14 in Fought’s Resort is shared with the west onshore property boundary of the Dunn Property.
43. The east onshore property boundary of the Dunn Property is shared with the west onshore property boundary of Lot 15 in Fought’s Resort, which is owned by Jeffrey R. Julian and Susan B. Julian (hereafter referred to as “the Julians”). Bortners’ Exhibit 1.
44. The only individual offering testimony with respect to the appropriate manner of establishing the riparian zone boundary lines for the Dunn Property was Kevin Michel (“Michel”). Michel is a licensed surveyor who has testified with respect to the establishment of riparian zone boundaries in numerous Commission administrative proceedings. Testimony of Michel.
45. After preparing a survey of relevant properties, Michel offered the opinion that the appropriate method of establishing the riparian zone boundary line between the Harstons’ western portion of Lot 14 and the Dunn Property is by extending the shared onshore property boundary line lakeward. Id. This method is consistent with Principle Two as set forth in “Riparian Zones within Public Freshwater Lakes and Navigable Waters,” Information Bulletin #56 (Second Amendment), Legislative Services Agency, 20100331-IR-312100175NRA (March 31, 2010), (hereafter referred to as IB #56). Id. and Harstons’ Exhibit 1.
46. There was no evidence presented in opposition to Michel’s opinion.[6]
IV. Did the Feller Easement contemplate the extension of a pier from the Dunn Property?
47. Fought’s Resort was established on July 21, 1947. Bortners’ Exhibit 8.
48. The Fellers owned Lot 14 in Fought’s Resort in 1954 and also owned property located to the south of Fought’s Resort that they platted as Fellers Addition on July 16, 1951. Bortners’ Exhibit 9.
49. While the Fellers owned Lot 14 in Fought’s Resort they constructed the channel to which they granted easement rights to the owners of various Lots within Fellers Addition through the Channel Easement.
50. While the Channel Easement is not at issue in the instant proceeding it is evidence of the Fellers’ intent to allow Lot owners in Fellers Addition to access Hackenburg Lake through the use of Lot 14 in Fought’s Resort.
51. There is no evidence a home ever stood on Lot 14 in Fought’s Resort.
52. Historic usage, from 1954 until 2000, of Lot 14, the Channel Easement (before its termination) or the Feller Easement is not clearly ascertainable from the evidence.
53. The Harstons, since their purchase of Lot 14 in Fought’s Resort in 2000 have cleaned up the property by removing overgrown vegetation, dilapidated outhouses and old piers that existed on the property at the time of their purchase. Testimony of Sandra Harston.
54. Evidence of outhouses on the portion of Lot 14 now owned by the Harstons and dilapidated piers existing on the Lot in or near the channel the Fellers’ constructed on the property0 supports the premise that the Fellers intended Lot 14 in Fought’s Resort to be a point of access or common area for the owners of certain Lots in Fellers Addition.
55. Quitclaim deeds were executed by certain owners of Lots in the Fellers Addition in 1989 that terminated the Channel Easement. Included in the Lot owners who executed those quitclaim deeds were the predecessors in title to the Bortners’ Lot 4 and the Harstons’ Lot 1 and Lot 2.
56. Although the Harstons have owned their property in Fought’s Resort since 2000 and Fellers Addition since 2011, they do not live on the property. Testimony of Sandra Harston.
57. The testimony of Sandra Harston makes clear that the termination of the easement rights associated with the channel by execution of the quitclaim deeds had little impact upon the continuing use of Lot 13 and the western portion of Lot 14 by non-owners.
58. Sandra Harston testified that “there have been people who trespassed on the property that had fires there. We had people put piers there…like stack it up like they were going to and then remove it and not actually put it in so there have been…when we’re not there sometimes we come in and we see somebody had a fire there or somebody did this there…”
59. The uses that have been made of the Harstons’ property in Fought’s Resort since 2000 bolster the conclusion that the Fellers allowed Lot 14 to be used as a common area and point of access to Hackenburg Lake for Lot owners in Fellers Addition.
60. The Harstons obtained necessary permits from the Department of Natural Resources and the U. S. Army Corps of Engineers and filled the channel situated along the boundary between Lot 13 and Lot 14 in Fought’s Resort in 2013. Bortners’ Exhibit 13, Testimony of S. Harston.
61. The termination of the Channel Easement and the eventual filling of the channel foreclosed the ability for the Lot owners in Fellers Addition, like the Bortners, who once held rights under the Channel Easement to utilize the channel for the placement of piers.
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62. However, for the Bortners, who also hold rights under the Feller Easement, the termination of the Channel Easement created, possibly for the first time, the need to exercise their rights under the Feller Easement from the shoreline associated with the Dunn Property.
63. From the evidence it is reasonably concluded that the Bortners, as well as the Bortners’ two most recent predecessors in title, Keri Brock (“Brock”) and Jody Wooster (“Wooster”), understood they had a right to access Hackenburg Lake through Lot 14 in Fought’s Resort, which they understood to include the right to place a pier and moor boats. Testimony of Brock.
64. A pier existed on the channel of Lot 14 when the Harstons purchased the property in 2000. Testimony of Sandra Harston.
65. In 2008 when Brock purchased Lot 4 and Lot 5 in Fellers Addition, now owned by the Bortners, she understood the pier extending into the channel on Lot 14 in Fought’s Resort was for her use. Testimony of Brock.
66. Brock was a full-time resident of Hackenburg Lake from 2008 until 2013.
67. After six to eight months of ownership, Brock sold Lot 4 and Lot 5 in the Feller Addition to Wooster who, in June 2012, sold the property to the Bortners. Testimony of Brock & Chad Bortner.
68. Brock acknowledged being unaware of the location of the property boundary between Harstons’ portion of Lot 14 and the Dunn Property or the boundaries associated with the Feller Easement; however Brock used the pier located on the channel of Lot 14 during 2008 and 2009 believing that to be the property from which her rights to access Hackenburg Lake flowed. Testimony of Brock. Brock did not maintain a boat at the pier but her son fished from the area. Id.
69. In 2009, before selling to Wooster, Brock had purchased Lot 15 in Hackenburg Resort and moved into that lakefront home. Brock remained a resident of Hackenburg Resort until August 2013 when she sold Lot 15 to the Julians.
70. Brock, from her residence at Lot 15 of Hackenburg Resort, observed Wooster’s continued use of the easement rights to access the pier that was situated on the channel of the portion of Lot 14 in Fought’s Resort owned by the Harstons. Id. Wooster eventually replaced the old pier and installed a new one in the same location and did moor a boat at the pier. Id.
71. Brock observed the Bortners use of the easement rights in a manner similar to the use made of those rights by Wooster. Id. Brock also observed the Bortners’ replacement of the pier again with a newer pier in 2013. Id.
72. Brock’s testimony regarding Wooster’s replacement of the pier and mooring of a boat at that pier is not entirely consistent with Sandra Harston’s testimony. Although she claimed the piers were not installed, Sandra Harston acknowledged seeing piers stacked up near the channel. It would be unrealistic to conclude that a person delivered a pier to the shoreline of the channel but did not install it. That conclusion would be especially difficult to reach in light of the fact that delivery of a pier to the channel is consistent with a person replacing an old pier, which is exactly what Brock, a full-time resident of Hackenburg Resort and neighbor to Lot 14, observed Wooster to do.[7]
73. Clearly, Brock, Wooster and the Bortners were aware that they had the right to access Hackenburg Lake through an easement appurtenant to Lot 4 in Fellers Addition but also clearly evident is the fact that they did not know whether their rights to access Hackenburg Lake flowed from the Channel Easement or the Feller Easement. Further they were without knowledge of the location of the property to which either of the easements are attached. Id & Testimony of Chad Bortner.
74. The Bortners’ lack of knowledge regarding the source of their easement rights is evidenced by the fact that they objected to the Harstons’ application for permits to fill the channel on Lot 14. Testimony of Chad Bornter & Sandra Harston.
75. It is believed that the Bortners’ never intended to trespass upon the Harstons’ portion of Lot 14. It is reasonably concluded that the Bortners, like Brock and Wooster before them, simply understood that their easement rights existed where the pier was located when Brock purchased Lot 4 and Lot 5 in Fellers Addition in 2008.
76. It is reasonably concluded from the evidence that since before 2000 the easement rights associated with Lot 4 have been understood to include the right to place a pier and moor boats.
77. Contemporaneous with removing their pier from the channel on Lot 14, the Bortners installed their pier on the shoreline of the Dunn Property under the authority of the Feller Easement.
78. Use of the Dunn Property to exercise easement rights to access Hackenburg Lake was not absolutely necessary until the Harstons enforced the termination of the Channel Easement in an effort to facilitate the filling of the channel in 2013.
79. The Bortners’ pier, extended from the shoreline of the Dunn Property, extended across the western portion of Lot 14. Testimony of Chad Bortner & Sandra Harston, Bortners’ Exhibit 1, Harstons’ Exhibit 1.
80. In addition to the Bortner Property, the Bortners also own a fifty foot strip of property running in an east-west direction parallel to the south property boundaries of Lot 5, Lot 6, Lot 7, and Lot 8 along with easement rights over the south and west portions of Lot 9, all in Fellers Addition, as well as easement rights over a portion of Lot 22 in Fought’s Resort.
81. The Harstons maintain that the Bortners may access Hackenburg Lake through Lot 22, instead of through their use of the Feller Easement over the Dunn Property. Harstons’ Exhibit 11B
82. While the Bortners’ may have easement rights across Lot 22 by virtue of their ownership of the additional tract of land, that fact does not diminish the validity of the Bortners’ rights under the Feller Easement that run with Lot 4.
83. In any event, the easement across Lot 22 in Fought’s Resort is not at issue in this proceeding and individuals necessary to any determination regarding easement rights associated with Lot 22 are not parties to this proceeding. [8]
84. Lot 15 in Hackenburg Resort, owned by the Julians, is situated along 50 feet of shoreline on Hackenburg Lake and is situated adjacent to the east side of the Dunn Property sharing a common boundary line with the Dunn Property. Testimony of Julian & Bortners’ Exhibit 8.
85. Julian is willing to share a portion of his shoreline area with the Bortners indicating that he is able to make this accommodation to the Bortners without interfering with his neighbors located further east, who own Lot 16 in Hackenburg Resort.
86. Vegetation and small trees or bushes grow on the Dunn Property, and it is clear that limbs of pine trees growing either on the Dunn Property or on the Harstons’ portion of Lot 14 overhang the Dunn Property such that traversing the land from the Hackenburg Resort’s platted road to the shore of Hackenburg Lake on foot is a challenge but would not be impossible. Testimony of Keri Brock, Chad Bortner, Harstons’ Exhibits 2 & 4. Carrying any type of small watercraft or cargo would further complicate traversing the Dunn Property from the road to the shoreline. Testimony of Michel, S. Harston.
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Conclusions of Law
I. Interest of Parties Who Failed to Assert an Interest
87. Persons identified as having a potential interest in the Feller Easement burdening the Dunn Property who failed to assert an interest following notice provided in accordance with Indiana Code § 4-21.5-3-1 are subject to the issuance of an order of default under Indiana Code § 4-21.5-3-24 and the issuance of a final order of default as to these persons is hereby entered.
88. “Pursuant to 312 IAC 3-1-9, the administrative law judge acting as the ultimate authority on behalf of the Commission, may issue an order determinative of the rights and interests, if any, of a defaulted party without the involvement of that party.” Xanders v. Nixon Trust, 14 CADDNAR 33, (2015) citing DNR v. Wildwood Shores Corp., and Earl Tidwell, 7 CADDNAR 217, (2000), Gross v. IDNR and Howard, 13 CADDNAR 283 (2014).
89. The record lacks any evidence that Vonda Akey, Treasurer, LaGrange County, Indiana; John D. Yates; John D. Jordan; Joseph Wright and Michelle Wright; Louis Gyovai and Nancy Gyovai; or any unknown heirs of the Fellers possess any claim to use the riparian rights associated with the Dunn Property.
90. As authorized by Indiana Code § 4-21.5-3-24, further proceedings necessary to complete this proceeding have been fulfilled and the issues determined are binding upon these persons.
II. Use of Riparian Rights Associated with the Dunn Property
91. The creation of an easement requires only “a description which identifies the land that is subject of the easement and expresses the intention of the parties.” Brown v. Heidersbach, 360 N.E.2d 614, 619, (Ind. Ct. App. 1977) citing Lennertz v. Yohn, 79 N.E.2d 414, 417 (Ind. Ct. App. 1948).
92. An easement is an interest possessed by one person to use or control land that is owned by another person for a specified purpose that establishes a relationship between the owner of the land and the holder of the easement. The relationship has been discussed 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.
Xanders v. Nixon Trust, 14 CADDNAR 33, 40 (2015) citing, Rehl v. Billetz, 963 N.E.2d 1 (Ind. App. 2012).
93. In this instance the Dunns are the owners of the servient estate while the Bortners and the Harstons are the owners of the dominant estate.
94. Only the Dunns, as owners of the Dunn Property, may assert a claim that the servient estate is being subjected to a greater burden than was contemplated by the Feller Easement. The Harstons are not proper parties to raise this claim. See Skilbred, et a. v. Spaw, et al. 13 CADDNAR 99, 119, (2013) (Findings 83-91).
95. The Dunns may not interfere with the Bortners’ and the Harstons’ use of the easement rights through the placement of obstructions upon the land burdened with the easement. Id. It is observed that such an obstruction might include trees maintained within the easement. Similarly, landowners and arguably owners of easement rights may have a remedy in nuisance associated with the encroachment of limbs from an adjacent property, in this case limbs potentially encroaching on the Dunn Property from the Harstons’ portion of Lot 14. See Scheckel v. NLI, Inc., 953 NE 2d 133, (Ind. Ct. App., 2011). The Commission possesses no jurisdiction over matters associated with landward obstructions and raises this point of law only to elucidate its rationale for placing no significance upon the fact that traversing the Dunn Property is impeded by trees growing on the Dunn Property or by tree limbs encroaching on the Dunn Property from the Harstons’ portion of Lot 14 or from the Julians’ property.[9]
96. According to the Indiana Supreme Court,
The extent of the easement interest is determined by the purpose served by the easement. N.Y. Cent. R.R. Co. v. Yarian, 219 Ind. 477, 482-83, 39 N.E.2d 604, 606 (1942) ("It is sometimes said that reservations of easements are strictly limited to the purposes in the minds of the parties, but we believe a proper application of the rule puts the limitation not upon the character of traffic upon a reserved way, but upon the purpose to be served by the traffic."); see also McCauley v. Harris, 928 N.E.2d 309, 314 (Ind.Ct.App.2010) ("It is well established that easements are limited to the purpose for which they are granted."), trans. denied.
Usually, easements arise to fill some need or serve some purpose. That purpose, whether expressed in the grant, implied, or acquired through prescription, is the focal point in the relationship which exists between the titleholders of the dominant and servient estates. The servient estate is burdened to the extent necessary to accomplish the end for which the dominant estate was created. The titleholder of the dominant estate cannot subject the servient estate to extra burdens any more than the holder of the servient estate can materially impair or unreasonably interfere with the use of the easement.
Klotz v. Horn, 558 N.E.2d 1096, 1099-1100 (Ind.1990) (citations omitted) (quoting Brown v. Heidersbach, 172 Ind. App. 434, 438, 360 N.E.2d 614, 618 (1977), reh'g denied, trans. denied).
Howard v. US, 964 N.E.2d 779, 781-782, (Ind. 2012).
97. With respect to riparian rights the issue is not whether the Harstons and the Bortners are riparian owners, the question is however, whether they are “entitled to use the riparian rights of the servient tenant”, in this case the Dunns, under the authority of the Feller Easement. Klotz at 1097.
98. The purpose to be served by the Feller Easement is clearly stated as follows:
…for the purpose of ingress and egress to and from the margin of the shoreline of Hackenburg Lake, for themselves, their representative agents, heirs and assigns, as well as any subsequent grantees of subsequent owner or owners of real estate now owned by the grantees, and further the right to land and moor their boats.
99. The Commission’s consideration of easements involving riparian rights on Indiana’s public freshwater lakes is consistent with the following principles:
Generally, a property owner whose property abuts a lake, river, or stream possesses certain riparian rights associated with ownership of such a property. The rights associated with riparian ownership generally include: (1) the right of access to navigable water; (2) the right to build a pier out to the line of navigability; (3) the right to accretions; and (4) the right to a reasonable use of the water for general purposes such as boating, domestic use, etc. .
Easements burdening land with riparian rights attached do not necessarily provide the easement holder use of these riparian rights. Instead, we first look to the express language of the easement. "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 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. A deed is ambiguous if it is susceptible to more than one interpretation and reasonably intelligent persons would honestly differ as to its meaning.
Parkison v. McCue, 831 N.E.2d 118, 128, (Ind. Ct. App., 2005), internal citations omitted.
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100. The Commission considered in great detail the meaning of the words “boat landing” as that term was used in an easement created by the plat to Long Lake Park situated on Big Long Lake in LaGrange County. Spaw v. Ashley, 12 CADDNAR 233 (2010). The discussion is instructive.
101. In Spaw, the Commission found unpersuasive the argument that the term “was no more specific than the terms ‘access to the lake’ or ‘ingress and egress to the water’s edge’ that Indiana appellate courts have found ambiguous.” Spaw at 242. In Spaw, the Commission stated,
A principle of statutory construction is that words and phrases shall be taken in their plain, or ordinary and usual sense. IC 1-1-4-1 and Indiana State Hwy. Comm’n v. Indiana Civil Rights Comm’n, 424 N.E.2d 1024 (Ind. App. 1981). A landing is a “place where a ship or boat takes on or unloads cargo or passengers.” WEBSTER’S THIRD NEW INTERNATIONAL DICTIONARY OF THE ENGLISH LANGUAGE UNABRIDGED, 1268 (1976 G. and C. Merriam Company, Publishers). A landing is a “[s]tructure providing a place where boats can land people or goods.” U.S. Gazetteer (1991) and WebDictionary.co.uk.
The courts have recognized that a “landing” may exist on realty that is unimproved or improved. “A ‘landing’ is a bank or wharf to or from which persons may go or to some vessel in the contiguous water….” State v. Louisiana Terminal Co., 179 La. 671, 154 S. 731 (La. 1934). A “landing” is a place on a navigable water, for lading and unlading goods, or for the reception and delivery of passengers. “It is either the bank or wharf to or from which persons may go from or to some vessel in the contiguous waters.” Portland & W.V.R. Co. v. City of Portland, 14 Or. 188, 12 P. 265 (Or. 1886). A boat landing may be unimproved or improved. A wharf is a type of improved landing. If suitable to the purposes for a public landing, the construction of a wharf on the realty is not inappropriate. Reighard v. Flinn, 194 Pa. 352, 44 A. 1080 (Pa. 1900).
A “wharf” is a structure built parallel and contiguous to the shoreline of a body of water and used as a berthing place for boats to unload cargo and passengers. When constructed perpendicular to or at an oblique angle to the shore, a “wharf” is considered a “pier”. Wester-Mittan, Glossary of Water Related Terms, 5 WATERS AND WATER RIGHTS (LexisNexis 2009). To similar effect is Jansing v. DNR and Hawkins, et al., 11 Caddnar 8, 23 (2007): “‘Pier’ means a long narrow structure extending from the shore into a body of water and used as a landing place for boats or used for recreational purposes. Terms sometimes used synonymously include dock, slip and wharf.”
Id.
102. As is the case here, historic usage by the lot owners in Spaw “[demonstrated] little regard for the geographic strictures placed in the easement…” In this instance, the Channel Easement was extinguished in 1989, or approximately 27 years ago. Since that time the only easement rights available for use flowed from the Feller Easement over the Dunn Property. However, the rights asserted by the Bortners and their predecessors in title dating back to as early as 2008 under the Feller Easement have been exercised along the channel on the portion of Lot 14 owned by the Harstons.
103. The Commission has concluded on multiple occasions that language granting “an easement six feet wide for a ‘boat landing’” unambiguously provides for the placement of a pier. Lawson v. Halliwill, 13 CADDNAR 146 (2013); Bull v. Trimmer, et al., 14 CADDNAR 10 (2015).
104. “A ‘pier’ is typically a long-narrow structure extending from the shoreline into a body of water and used as a landing place for watercraft or for other recreational purposes. Beck, 6 Waters and Water Rights, 929 (1991). If the right of access to the benefits of water is at the core of riparian rights, the closest corollary to that right is the right to construct and maintain a wharf (including a pier, dock, or a related structure) to allow effective access to and from the water. Ex parte Easton, 95 U.S. 68 (1877).” Gardner v. Department of Natural Resources and Taggert, et al., 7 CADDNAR 192, 193, (1997). See also Piering v. Ryan and Caso, 9 CADDNAR 123, 130-131, (2003) [“In Hoosier vernacular, the terms "dock", "pier", and even "slip" and "wharf", are used almost interchangeably. The Natural Resources Commission recently observed: "A 'pier' is a long narrow structure extending from the shore into a body of water and used as a landing place for boats or used for recreational purposes.”]; Stites, et al. v. RCI Development & DNR, 11 CADDNAR 381 (2008), [“‘A “pier” is a long narrow structure extending from the shore into a body of water and used as a landing place for boats or used for recreational purposes.”]; Jansing v. DNR and Hawkins, et al., 11 CADDNAR 8 (2007), [“‘Pier’ means a long narrow structure extending from the shore into a body of water and used as a landing place for boats or used for recreational purposes. Terms sometimes used synonymously include dock, slip and wharf.”]; see also Hayman v. DNR and Thorne v. Wetstone, 9 CADDNAR 144 (2004).
105. The Feller Easement does not expressly state that a pier may be extended from the Dunn Property but, likewise, nothing within the Feller Easement expressly prohibits the extension of a pier for that purpose.
106. The Feller Easement is not ambiguous. The clearly stated purpose of the Feller Easement is to provide for ingress and egress to the shore of Hackenburg Lake along with a right to “land and moor” boats.
107. Extrinsic evidence is not appropriate for consideration in this case.
108. The Bortners and the Harstons “possesses all rights necessarily incident to the enjoyment of the easement” purposes. Rehl, supra and Howard, supra. The extension of a pier from the Dunn Property is consistent with their enjoyment of the purposes expressly stated in the Feller Easement. A pier provides for ingress and egress to Hackenburg Lake, for landing boats, for mooring boats, for fishing and swimming along with other types of water recreation, all of which are clearly contemplated by the Feller Easement. This conclusion is consistent with a long line of Commission precedent as set out supra.
109. The Bortners’ and the Harstons’ may exercise riparian rights associated with the Dunn Property under authority of the Feller Easement but this exercise of rights is nonexclusive. “In exercising their nonexclusive rights [they] may not unreasonably interfere with the rights of” each other. Hayman v. DNR and Thorne v. Wetstone, 9 CADDNAR 144, 148, (2004).
110. The Dunns may exercise riparian rights associated with the shoreline of the Dunn Property only to the extent that such exercise does not interfere with the dominant rights of the Bortners and the Harstons.
111. The evidence of record supports establishing the riparian zone boundary between the Dunn Property and the Harstons’ portion of Lot 14 in accordance with the Second Principle of IB #56, which specifies that the onshore property boundary shall be extended lakeward.
112. At present there are only three property owners who may use a pier extended from the shoreline of the Dunn Property. As such, an individual license, under 312 IAC 11-3-3, for the construction of a group pier, is not required.[10]
113. The modest shoreline associated with the Dunn Property does not terminate the right to use the riparian rights or the Feller Easement associated with that property. Spaw; Xanders v. Nixon Trust, 14 CADDNAR 33 (2015); Havel & Stickelmeyer v. Fisher, et al., 11 CADDNAR 110 (2007); Lawson v. Halliwill, 13 CADDNAR 146 (2013).
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114. The Commission was granted authority to provide “for a common use if the standard is needed to accommodate the interests of landowners having property rights abutting the public freshwater lake or rights to access the public freshwater lake.” Indiana Code § 14-26-2-23(e)(2)(A).
115. The Commission developed standards for common use at 312 IAC 11-3-4, which, as relevant here, requires as follows:
(b) If the placement of multiple structures is found to result in interference to the property rights of a landowner, the department (or, on administrative review, the commission) may require licensure to be conditioned upon common use and maintenance of a structure.
(c) Common use and maintenance may be implemented through any of the following persons:
(1) A corporation.
(2) A limited liability company.
(3) A partnership.
(4) An association.
(5) A county, city, town, or township.
(6) Another person providing for common ownership and determined by the department (or, on administrative review, by the commission) to be capable of serving the purposes of this section.
(d) A person who refuses to participate in a process for common usage, established under this section, may be denied:
(1) a license by the department; and
(2) access to the common structure by the person identified under subsection (c).
116. While “the law ‘prohibits encroachments upon the riparian rights of another.’” Belcher & Belcher v. Yager-Rosales, 11 CADDNAR 79, 82, (2007) citing Bath v. Courts, 459 N.E.2d 72, 76 (Ind. Ct. App. 1984), encroachments into or the use of the riparian rights of another riparian owner is permissible by agreement or license.
117. The Julians have indicated a willingness to allow the Bortners’ to use a portion of their shoreline on Hackenburg Lake. Testimony of Jeff Julian.
118. The Commission customarily requires the maintenance of clear space between piers and other temporary structures placed by riparian owners or those with interests sufficient to use the riparian rights of the riparian owners. IB #56, Havel & Stickelmeyer v. Fisher, et al., 11 CADDNAR 110 (2007), Rufenbarger & Rufenbarger v. Blue, et al., 11 CADDNAR 185 (2007) and Sims, et al. v. Outlook Cove, LLC and Outlook Cove Homeowners Ass’n, 10 CADDNAR 258, 279, (2006).
119. In this instance, only the west riparian zone boundary associated with the shared onshore boundary of the Dunn Property and the western portion of Lot 14, owned by the Harstons is established.[11]
FINAL ORDER
120. Only the Bortners and the Harstons possess easement rights over and upon the Dunn Property by virtue of the Feller Easement.
121. The Feller Easement grants to the Bortners and the Harstons the right to extend a pier lakeward from the shoreline of the Dunn Property for the purpose of ingress and egress to Hackenburg Lake for the exercise of riparian rights including the landing and mooring of boats.
122. The west riparian zone boundary of the Dunn Property shall be determined by the extension lakeward of the west onshore property boundary line of the Dunn Property, shared with the east onshore property boundary of the portion of Lot 14 that is owned by the Harstons. This is consistent with Principle Two as set forth in IB #56.
123. No clear space is required to be maintained on either side of the riparian boundary line established in accordance with Finding 130.
124. No portion of a pier, pier extension, watercraft or any other appendage may extend beyond the riparian zone boundary line established by Finding 130 except with the permission of the adjacent property owner.[12]
125. The Dunn Property’s modest, five foot, width precludes the extension of multiple piers for use by the multiple users. Therefore, in accordance with Indiana Code § 14-26-2-23(e)(2)(A) and 312 IAC 11-3-4, the Commission orders that one pier be used in common by the Bortners and the Harstons. Unless agreed otherwise the Bortners and the Harstons pier construction, maintenance and use shall comply with the following conditions:
a. Optimally, the pier extended from the shoreline of the Dunn Property will be two feet in width, but the pier in no case shall exceed three feet in width. The pier shall extend only so far lakeward as necessary to reach water consistently six feet deep but in no event shall the pier extend more than one hundred fifty (150) feet from the shoreline.
b. The pier shall be extended from the center of the shoreline associated with the Dunn Property.
c. The west side of the pier shall be available to use by the Harstons[13].
d. The east side of the pier and the lakeward end of the pier shall be available to use by the Bortners[14].
e. (e) The Bortners and the Harstons shall share in the reasonable and customary costs associated with purchasing, installing and maintaining the pier as described in section (a) of this Finding.
f. If either the Bortners or the Harstons are unwilling to contribute to the costs and maintenance associated with the pier, the noncontributing party shall forfeit rights to use the pier as set forth herein, until such time as contribution to the costs and maintenance of the pier have been satisfied in accordance with subpart (e). Contribution shall not be pro-rated. Failure to contribute to annual maintenance or installation costs or to pier replacement costs in any subsequent year shall constitute non-contribution and shall result in a forfeiture of use. During any forfeiture period, the rights of the noncontributing party may be used by the other party. In light of the fact that the Bortners are the easement holders with the more significant need to use the riparian rights associated with the Dunn Property under the Feller Easement, the Bortners shall be tasked with the implementation of this order and these conditions.
[1] The LaGrange County Treasurer now identifies the LaGrange County Treasurer Office address as the Dunns’ service address. For this reason the Dunns were served at that address by U.S. Mail and by publication.
[2] Certain facts established in the Summary Judgment Order are included in this Nonfinal Order to enhance clarity.
[3] Findings of fact that may most appropriately be characterized as conclusions of law and conclusions of law that may best be construed as findings of fact shall be so considered.
[4] The evidence indicates that additional easements exist and may provide access to Hackenburg Lake. This evidence was not fully developed and the other easements are not at issue in this proceeding.
[5] The property did not sell.
[6] It is noted that counsel for the Harstons and the Bortners concurred in their opening statements and in their post-hearing briefs that the riparian zone boundary should be established in accordance with Michel’s testimony. It is noted that counsel for the Department of Natural Resources, in his opening statement, indicated a preference for application of Principle Three as set forth in IB 56. The Department presented no evidence in support of this preference.
[7] It is not believed that Sandra Harston was untruthful in her testimony. It is believed that Wooster replaced the old pier and moored a boat at that pier without the Harstons’ knowledge due to their lack of presence at the property. . The evidence does not indicate the frequency with which the Harstons visit their property in Fought’s Resort and Fellers Addition.
[8] It is expressly noted that this proceeding is not to be construed as determinative of any issue associated with the easement over Lot 22 in Fought’s Resort.
[9] The Commission offers no opinion with respect to the proper avenues to address these issues.
[10] It is recognized that future conveyances of property by the Harstons or Bortners could result in additional property owners claiming an interest in the Feller Easement. It is also acknowledged that additional persons, not identified and provided notice of the present proceeding, may in the future claim a right under the Feller Easement. The occurrence of these events could result in the need to obtain a group pier permit.
[11] It would be improper to establish the east riparian zone boundary associated with the onshore boundary line shared by the Dunn Property and the Julians’ property because the Julians are not parties.
[12] While the riparian zone boundary line between the Dunn Property and the Julians’ property is not determined, encroachments into the riparian zone of the Julians’ are, likewise, not permitted without authority.
[13] It is presumed the Harstons’ use the west side of the pier would be in conjunction with their use of the riparian zone associated with the portion of Lot 14 owned by them.
[14] The Bortners use of the east side and end of the pier may be limited to temporary mooring of watercraft for loading and unloading cargo and passengers. The result would be the same for the Harstons if they were not also the owners of the portion of Lot 14 in Fought’s Resort lying adjacent to the Dunn Property. The facts of this case an effort to reasonably apportion use of the Feller Easement and Dunn Property requires that the Bortners be granted use of the end of the pier in addition to the east side.