CADDNAR

[CITE: Rennaker v. Simmers, et al., 14 CADDNAR 66 (2016)]

[VOLUME 14, PAGE 66]

Cause #: 15-091W

Caption: Rennaker v. Simmers, et al.

Administrative Law Judge: Jensen

Attorneys: pro se (other parties); Wooding, Grow (DNR)

Date: April 20, 2016

[NOTE: Final Order follows Findings of Fact and Conclusions of Law]

FINDINGS OF FACT AND CONCLUSIONS OF LAW

Procedural Background and Jurisdiction:

1. On July 6, 2015, Petitioners, Ronald and Patricia Rennaker (collectively referred to as “the Rennakers”), filed correspondence with the Natural Resources Commission (Commission) alleging that Respondent, Vince Simmers, had placed an “unpermitted pier on an easement between 6661 E. Harrold Road (Rennakers) and 6645 E. Harrold Road (Papes) on Blue Lake in Whitley County”, Indiana. The correspondence is characterized as a request to resolve a dispute amongst “persons with competing interests” as to riparian rights as specified at Indiana Code § 14-26-2-23(e)(3).

2. The real property at issue in this proceeding is located within the Harrold’s First Addition.

3. The Commission possesses jurisdiction over the subject matter and the parties to this proceeding and serves as the ultimate authority pursuant to 312 IAC 3-1-2.

4. Blue Lake, located in Whitley County is a “public freshwater lake” within the meaning of 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.

5. An initial prehearing conference was conducted on August 6, 2015. It was concluded during the prehearing conference that the issues to be determined through the instant proceeding relate to a thirty (30) foot wide easement (hereafter referred to as “the Subject Drive”) situated between the Rennakers’ real property and real property owned by Richard W. and Karen M. Pape (collectively referred to as “the Papes”). At the prehearing conference, Vince Simmers expressed that through easement language he possesses the right, in common with other lot owners, to extend a pier lakeward of the shoreline associated with the Subject Drive.

6. It was determined during the prehearing conference that the Subject Drive at issue here has been the subject of past litigation. Rennaker v. Gleason, 913 N.E.2d 723 (Ind. Ct. App., 2009) (hereafter referred to as “Rennaker I”). The past litigation addressed the landward use of the Subject Drive but does not address any potential lakeward uses.

7. Also determined during the prehearing conference was that title to Vince Simmers’ real property is held jointly with his wife, Vicki L. Simmers. It was also concluded that the issues presented in this proceeding may most directly impact the rights and interests of the Papes, as well as other lot owners, identified as Larry and Sandy Guenin and Violet Coyle, (collectively referred to as “the Guenins”); Tim and Melynda Arend (collectively referred to as “the Arends”); Lynn and Deloris Palmer (collectively referred to as “the Palmers”); and Rich and Deb Parks (collectively referred to as “the Parkses”), who have on occasions used the waters lakeward of the Subject Drive, and the pier, for mooring boats.

8. The Papes, the Guenins, the Arends, the Palmers and the Parkses were joined as parties and a supplemental prehearing conference was scheduled.[1]

9. The Simmers, the Guenins, the Arends, the Palmers and the Parkses are hereafter collectively referred to as “the Respondents”. The Rennakers and the Papes are collectively referred to as “the Petitioners”.

10. A reference to “backlot owners” includes collectively all Lot Owners similarly situated to the Respondents, who are owners within any of the Harrold’s Additions who do not own property abutting the shoreline of Blue Lake. When referred to generally, Lot Owners within the Harrold’s Additions who do own property abutting the shoreline of Blue Lake, which includes the Petitioners involved in this proceeding, will be referred to as “lakefront owners”.

11. On September 22, 2015, during the supplemental prehearing conference, the parties were ordered to file and exchange witness and exhibit lists not later than October 19, 2015 and an administrative hearing was scheduled for November 5, 2015. The administrative hearing was conducted as scheduled.

12. All parties were self-represented; pleadings were not artfully crafted to identify all of the potential issues and the evidence was not skillfully presented. The evidence of record in certain instances lacks thoroughness. Certain issues were not appropriately identified and cannot be addressed and, on occasion, the Commission has been challenged to draw inferences from available evidence in the record to reach the most reasonable conclusions.

Perspective Provided through Rennaker I:

13. Rennaker I resulted from a proceeding initiated in 2005 by Raymond D. Gleason (Gleason), a lakefront owner within Harrold’s First Addition, who is not a party to the present proceeding, against the Rennakers, the Papes and another lakefront owner who is not a party to this proceeding, “seeking a declaratory judgment as to the existence of the forty-foot driving easement and an injunction preventing defendants from blocking the path.” At pg. 728. The “trial court declared the forty-foot easement …was a valid driving easement ‘by express grant, by prescription, and by implication’ and that the easement was also ‘a public highway as a matter of fact and law. ...” The trial court also permanently enjoined the Rennakers and the Papes from encroaching or impeding access to both the forty-foot easement along the shoreline and thirty-foot easement situated between the Rennakers’ and the Papes’ Lots.

14. The Rennakers and the Papes appealed the trial court’s decision and in 2009, the Indiana Court of Appeals considered the matter.

Prior to 1922, Frank Harrold owned a tract of undeveloped land along Blue Lake in Whitley County, Indiana. On October 16, 1922, a portion of that tract was platted as Harrold's First Addition, consisting of thirty-five lots. Between Lots 8 and 9, the plat indicated a "30' Drive." … the lots did not extend to the shore of Blue Lake. Harrold retained ownership of the strip of land between the lots and the shore but granted lot owners "an easement or right of way over the property of said grantors between the north line of said lot and the lake shore," as expressed in the deeds conveying the lots.

In 1958, the Whitley County Surveyor recorded in "Plat Book E, page 2" a "Plat of Survey" of Harrold's First Addition. The document depicted the land along the lakeshore divided into lots ("lakeside lots"), corresponding to the widths of the lots in the First Addition, as well as a forty-foot wide easement that ran along the shore of Blue Lake between Lots 2 and 27, north of the First Addition lots. Between Lots 8 and 9, there was a "30' Easement" that stretched to the shore. Although delineated, the lakeside lots and forty-foot easement were still owned by the original grantor and his family members, the Harrold’s.

[VOLUME 14, PAGE 67]

In the years following, the Harrold’s began conveying the lakeside lots to the corresponding Harrold's First Addition lot owners. These Lakeside Lot Deeds included the following language, or a slight variation thereof:

Subject to the following covenants and agreements:

1. The Second Parties [Grantees], their heirs, Executors, Administrators and assigns agree that they will not erect upon said real estate any structure other than septic tanks, drains or sewers.

2. The Second Parties [Grantees], their heirs, Executors, Administrators and assigns agree that the conveyance of said real estate shall be subject to the right-of-way of the existing road and Easement to the Northern Indiana Public Service Company.

3. The Second Parties [Grantees], their heirs, Executors, Administrators and assigns also agree that the conveyance of said real estate shall be subject to the right of the owners of lots in any of Harrold's Additions to Blue Lake to cross said real estate on foot to gain access to Blue Lake.

A majority of the Lakeside Lot Deeds also noted that the conveyance of the deed was "subject to a 40 foot wide public easement for roadway purposes across the North end thereof as shown in survey recorded in Plat Book `E', page 2, records of Whitley County, Indiana."

Rennaker I, at pgs. 726-728.

15. The Court of Appeals also observed;

… the deeds for lots in the Second, Third and Fourth Additions, contained the following provision:

And, the grantors hereby grant to the grantee ... free right and liberty ... on foot, but not with cattle, sheep, pigs, or other animals to pass and repass along, over and upon real estate owned by said grantors between Frank Harrold's First Addition to Blue Lake and the shore line of Blue Lake, for all purposes connected with the use and enjoyment of the said grantees premises hereinabove described as a single private dwelling house, but not for any other purpose. The grantors also grant unto the grantee... to walk over the walkways and to drive over the drive-ways in Frank Harrold's First Addition to Blue Lake and Frank Harrold's Second Addition to Blue Lake.

… These provisions clearly indicate that the Harrold’s wanted to provide the lot owners in any of the additions with access to Blue Lake. Also, the usage of the terms "right of way"[6] and "drive over the drive-ways" implies access by vehicles. As acknowledged by both parties, the 1922 Plat depicts a "30' Drive" between Lots 8 and 9.

Rennaker I at pg. 731.

16. In Rennaker I the Court of Appeals rejected the Rennakers’ and the Papes’ arguments and affirmed the trial court’s decision in these words:

The third restriction specifically permits foot traffic on any portion of a lakeside lot. With this later reference to the burden of foot traffic on the entire lakeside lot, the absence of any restriction coupled with the use of the term roadway in the language of the forty-foot easement indicates the intention of a type of traffic above and beyond that of pedestrians. Also, "the right-of-way of the existing road" logically refers to the extension of the "30' Drive" between Lots 8 and 9 to the lake in order to provide a complete path from the public road to the forty-foot easement.

Rennaker I at pg. 732.

17. Rennaker I, decided all issues associated with the landward use of both forty-foot drive and the Subject Drive and concludes that it was the Harrold’s’ intent to provide lakefront and backlot owners with access to Blue Lake. Rennaker I does not address the extent of the “access to Blue Lake” the Harrold’s intended to convey to the backlot owners.

18. This decision is intended to be an extension of Rennaker I and shall be interpreted in a manner complimentary to the conclusions reached in Rennaker I. For that reason, consideration of the evidence of record in this proceeding will begin from the perspective of the Subject Drive as developed in Rennaker I.

Findings of Fact [2]:

19. Harrold’s First and Second Additions were platted by Frank Harrold and/or Murray and Lois Harrold (the “Harrold’s”), with the First Addition beginning platted in 1922. According to the description provided in Rennaker I Harrold’s First Addition as originally platted “consisted of thirty-five lots. … all but two of the lots were forty-five feet wide and the lots did not extend to the shore of Blue Lake. Harrold retained ownership of the strip of land between the lots and the shore but granted lot owners ‘an easement of right of way over the property of said grantors between the north line of said lot and the lake shore.’” Rennaker I at pg. 725, Petitioners’ Exhibit 7 (George Summers’ deed dated March 6, 1923).

20. The thirty-five originally platted lots in Harrold’s First Addition will hereafter be referred to as the “Platted Lots”.

21. A platted roadway running in a generally east-west direction, known as Harrold Road, bounds the south side of the Platted Lots.

22. Extending from Harrold Road in a general northerly direction are a ten-foot, twenty-foot, and thirty-foot drive that end at the shoreline of Blue Lake by which the holders of easement rights to the strip of property between the northern property boundary of the Platted Lots and the shoreline of Blue Lake were able to access the easement across the shoreline property retained by the Harrold’s. The twenty-foot drive is located adjacent to Lot 28 and the ten foot drive is located between Lot 21 and Lot 22. The Subject Drive is situated between Lot 8 and Lot 9. Testimony of Patricia Rennaker, Petitioners’ Exhibit 6.

23. In or near 1976, the Harrold’s began conveying to the owners of the Platted Lots the property situated between the northern property boundary of the Platted Lots and the shoreline of Blue Lake in segments corresponding to the east and west property boundaries of the Platted Lots. Rennaker I and Testimony of Doris Pape. (Note: In Rennaker I the Court of Appeals refers to the segments of property situated between the northern property boundary of the Platted Lots and the shoreline of Blue Lake corresponding to the Platted Lot as “the Lakeside Lots”. For consistency, that reference will be maintained here.)

[VOLUME 14, PAGE 68]

24. In the deeds conveying the Lakeside Lots to the owners of the Platted Lots the Harrold’s included the following covenants, restrictions and reservations:

1. The Grantees, their heirs, Executors, Administrators and assigns agree that the will not erect upon said real estate any structure other than septic tanks, drains or sewers.

2. The Grantees, their heirs, Executors or assigns agree that the conveyance of said real estate shall be subject to the right-of-way of the existing road and Easement to the Northern Indiana Public Service Company.

3. The Grantees, their heirs, Executors and assigns also agree that the conveyance of real estate shall be subject to the right of the owners of lots in any of Harrold’s Additions to Blue Lake to cross said real estate on foot to gain access to Blue Lake.[3]

Petitioners’ Exhibit 7 (Doris Pape Deed dated July 31, 1976).

25. Lots in Harrold’s Second Addition were being sold by the Harrold’s at least 32 years before the Lakeside Lots were sold to the owners of the Platted Lots in Harrold’s First Addition. Petitioners’ Exhibit 7, (Pio Deed-predecessor in title to the Simmers) and (Lemler Deed-predecessor in title to the Parkses) both dated October 16, 1944.

26. Included in the Harrold’s’ deeds of conveyance of Lots in Harrold’s Second Addition was the following granted easement:

The grantors hereby grant to the grantees, their heirs, executors, administrators and assigns, full and free right and liberty for them, and their tenants, servants and licensees, hereafter, on foot [4] but not with cattle, sheep, pigs or other animals to pass and repass along, over and upon real estate owned by said grantors between Frank Harrold's First Addition to Blue Lake and the shore line of Blue Lake, for all purposes connected with the use and enjoyment of the said grantees premises hereinabove described as a single private dwelling house, but not for any other purpose. The grantors also grant unto the grantee... to walk over the walkways and to drive over the drive-ways in Frank Harrold's First Addition to Blue Lake and Frank Harrold's Second Addition to Blue Lake.

Rennaker I at 731, Testimony of Patricia Rennaker, Petitioners’ Exhibit 7, Pio Deed (predecessor in title to the Simmers) and Lemler Deed (predecessor in title to the Parkses) both dated October 16, 1944.

27. At the time the Lots in Harrold’s Second Addition were sold and the Easement stated in the deeds of conveyance was created in favor of the Lot Owners in the Second Addition, the Lakeside Lots, later purchased by the owners of the Platted Lots in Harrold’s First Addition, were in the ownership of the Harrold’s, the grantor of the deeds conveying to purchasers of Lots in Harrold’s Second Addition, the easement burdening the Lakeside Lots.

28. The language contained within the Deeds conveying Lots in Harrold’s Second Addition create two distinct easements.

a. The first is an easement granting the right to walk over and drive over walkways and driveways. (Hereafter referred to as “the Drive Easement”).

b. The second easement allows passage “along, over and upon” the Lakeside Lots “for all purposes connected with the use and enjoyment of the said grantees premises hereinabove described as a single private dwelling house, but not for any other purpose.” (Hereafter referred to as “the Lakeside Lot Easement”).

29. Doris Pape, the mother of Respondent, Richard W. Pape, and the predecessor in title to the Papes’ real property, became the owner of Lot 8 in 1961 and purchased the corresponding Lakeside Lot in 1976. It is not clear in the record when the Rennakers purchased Lot 9 or when they purchased the correlating Lakeside Lot; however, the evidence is clear that the Rennakers have owned both parcels of real property for many years.

30. Through the Harrold’s’ conveyance of the Lakeside Lots correlating to Lot 8 and Lot 9, the Papes and the Rennakers are the fee title owners of property abutting Blue Lake. (For ease of the continuing discussion the Papes’ real property, Lot 8 and the corresponding Lakeside Lot will simply be referred to as Lot 8. Similarly, the Rennakers' real property, Lot 9 and the corresponding Lakeside Lot, will be referred to only as Lot 9.) A current survey of Lot 8 and Lot 9 are not included in the record but available evidence supports a reasonable conclusion that each of the Lots is approximately forty-five feet in width having approximately forty-five of shoreline.

31. There is no evidence in the record upon which to base a conclusion that either the Drive Easement or the Lakeside Lot Easement conveyed to Lot Owners in Harrold’s Second Addition has been extinguished.

32. The Petitioners mistakenly insisted throughout the administrative hearing that the sale of the Lakeside Lots in and near 1976 somehow impacted the rights of the backlot owners who had been granted easements to use the Lakeside Lots and Subject Drive. However, the deeds conveying the Lakeside Lots make no mention of the drive-ways or walk-ways and expressly states that the conveyance was made subject to the rights of other Lot Owners in any of the Harrold’s Additions to the Lakeside Lots.

33. The Simmers are the owners of Lots 13, 14, 15 and the west 35 feet of Lot 16 in Harrold’s Second Addition.

34. The Guenins are the owners of Lots 10 and 11 in the Harrold’s Second Addition.

35. The Arends are the owners of Lot 12 in Harrold’s Second Addition.

36. The Palmers are the owners of Lot 17 in Harrold’s Second Addition and the Parkses are the owners of Lots 20 and 21 in Harrold’s Second Addition.[5]

37. None of the Lots owned by any of the Respondents abuts the shoreline of Blue Lake.

38. The Petitioners’ request seeking resolution of a dispute associated with riparian rights states;

Location: Unpermitted pier on an easement between 6661 E. Harrold Road (Rennakers) and 6645 E. Harrold Road (Papes) on Blue Lake in Whitley County.

…

Mr. Simmers has again placed his unpermitted pier in the easement for the second year in a row.

Request for Dispute Resolution, filed by the Rennakers on July 6, 2015. As stated previously in Finding 5, the parties clarified during the prehearing conference.

39. Clearly, the only matter presented by the Petitioners in this proceeding relates to the Subject Drive, which involves only consideration of the Drive Easement granted to the Lot Owners in Harrold’s Second Addition.

40. The Easement granted to the Lot Owners in Harrold’s Second Addition associated with the Lakeside Lots is not at issue and will not be considered further in this proceeding. [6]

41. The Subject Drive, as originally platted, extends from Harrold Road to the shore of Blue Lake. Rennaker I supported by Petitioners’ Exhibits 4 & 6.

[VOLUME 14, PAGE 69]

42. The evidence established that the Rennakers and the Papes were unsuccessful in an attempt to have the Subject Drive vacated.

43. Neither of the Petitioners, nor any of the Respondents owns the real property associated with the Subject Drive. Testimony of Doris Pape.

44. The parties presented testimony focused upon the Lakeside Lot Easement that is not directly relevant in determining what rights the Harrold’s intended to convey to easement holders associated with the Drive Easement or the lake frontage correlated with the drive-ways or walk-ways.

45. The language associated with the Drive Easement as contained within the deeds conveying Lots in Harrold’s Second Addition is straightforward,

The grantors also grant unto the grantees, her heirs, executors, administrators and assigns, the right to walk over walk-ways and to drive over drive-ways in Frank Harrold’s First Addition to Blue Lake and Frank Harrold’s Second Addition to Blue Lake.

Petitioners’ Exhibit 7, Pio Deed (predecessor in title to the Simmers) and Lemler Deed (predecessor in title to the Parkses) both dated October 16, 1944

46. Frank Harrold, Murray Harrold and Lois Harrold are deceased and unable to provide direct evidence as to the intended purpose for the drive-ways and walk-ways, including the Subject Drive.

47. Evidence in the record, elicited from family members and friends of the Harrolds with respect to the Harrolds’ intended purpose for the drive-ways is somewhat inconsistent. Testimony of Testimony of Scott Anderson [7], Doris Pape, and Eileen Williams.

48. Scott Anderson (Anderson), who is the grandson of Murray Harrold who passed in 1983 and whose great uncle, Frank Harrold, passed in 1961, has lived in the Harrold’s Addition all his life. Anderson explained that to his knowledge it was the original intent of his ancestors to construct a roadway along the shoreline of Blue Lake within the retained forty-foot strip of land. However, when it became apparent the ground along the shoreline was not suited to supporting a road the endeavor was abandoned and the real property was sold as the Lakeside Lots. Anderson could not explain why the drive-ways platted between Harrold Road and the shoreline varied in widths but offered his understanding that the thirty-foot drives, like the Subject Drive, was intending to provide vehicular passage for emergency equipment, particularly firefighters who would access the waters of the lake for fire suppression. This testimony was supported by the testimony of other witnesses, including Doris Pape, Joanne LeFevre (LeFevre) and Eileen Williams (Williams).

49. Anderson further testified that the narrower drive-ways provided walking lanes to access the lake for fishing, particularly ice fishing. Anderson offered his belief that the drive-ways, including the Subject Drive, were not intended to be use for the placement of piers by backlot owners.

50. Eileen Williams (“Williams”) has been engaged in the work of the homeowners association since 1978. Williams stated it has been her knowledge that “when Murray Harrold set up the Second Addition the easements were for the people of the Second Addition….” See Petitioners’ Exhibit 7, Pio Deed (predecessor in title to the Simmers) and Lemler Deed (predecessor in title to the Parkses) both dated October 16, 1944.

51. Williams acknowledged that there is always controversy about the use of the easements noting that the right to install piers and moor boats was not expressly stated in the language conveying the Drive Easements. Williams further acknowledged that the walk-ways and drive-ways in Harrold’s First Addition do not provide sufficient space for all the Lot owners in the other Harrold’s Additions to each maintain a pier. However, she expressed the belief, based upon knowledge of the Harrold Additions and her acquaintance with Murray and Lois Harrold, that the enjoyment of owning a dwelling in the Second Addition included the right to use Blue Lake through the drive-ways.

52. In Rennaker I, the Court of Appeals recognizes that the “reference to the burden of foot traffic on the entire lakeside lot, …coupled with the use of the term roadway in the language of the forty-foot easement indicates the intention of a type of traffic above and beyond that of pedestrians.” It is recognized here, as well, that the Lakeside Lot Easement creates rights to the entirety of the Lakeside Lots that is distinct from the forty-foot roadway.

53. Evidence as to actual past uses that have been made of the drive-ways, particularly the Subject Drive, is more consistent. Testimony of Scott Anderson [8], Doris Pape, Joanne LeFevre, Eileen Williams.

54. Anderson acknowledged that the ten-foot driveway adjacent to his real property in the Harrold’s First Addition is used by backlot owners for the placement of a pier. Anderson initially expressed his personal preference that the drive-ways and walk-ways not be used for extending piers or mooring boats, [9] but he has taken no action to prevent the installation of piers from the drive-way adjacent to his property and in subsequent testimony expressed that he has no interest in what ultimately occurs with respect to the Subject Drive or any of the drive-ways or walk-ways.

55. According to an affidavit of Eric Bianski (Bianski), he has owned Lot 21 since 1990 and during his 25 years of ownership there has not been a pier extended from the ten-foot drive-way adjacent to his property. The affidavit of Andy and Mary Jo Peters (the Peters), the 29 year owners of Lot 28, indicates that no back lot owner has extended a pier from the twenty-foot drive-way adjacent to their property.[10]

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56. Williams stated that since 1978 when she moved to the lake and was acquainted with Murray and Lois Harrold “there has always been piers in the easement, in all easements. It’s just now that the people are complaining about the easements. [Lakefront Owners] don’t like it, and I can’t say that I blame them.” From this testimony it is certain that some of the drive-ways and walk-ways have historically been burdened with piers and moored boats.

57. While the Petitioners maintain that the Subject Drive and correlating lake frontage has not been routinely used by backlot owners for placing piers, Patricia Rennaker offered historical perspective with respect to the customary use that has been made of other walk-ways and drive-ways in Harrold’s First Addition when she testified, “we were fearful of a takeover of these easements; since two them were taken over we figured the other two would be taken over too.”

58. For eight to 10 years beginning in 1961, Joanne LeFevre (LeFevre) lived in the home that previously stood on the Rennakers’ real property, Lot 9 [11]. Testimony of LeFevre. LeFevre testified that people residing across the road, on the real property now owned by the Simmers, extended piers from the shoreline of the Subject Drive. She stated, “It’s always been that way.”

59. Jerry Steigerwald (Steigerwald) has been associated with the Harrold’s Additions since 1961 when his aunt and uncle lived in each of two houses then existing on Lot 9, presently owned by the Rennakers. Testimony of Steigerwald. Steigerwald specifically recalled that as a child there was “always a pier” extended from the exact center of the Subject Drive explaining the he would “get yelled at for playing on” the pier that belonged to the “people across the road”.

60. Later, during the years 1987 and 1988, Steigerwald personally rented and lived in one of the houses owned by the Rennakers. Testimony of Steigerwald. During those years Steigerwald testified that Ken and Ronda Salge and another predecessor in title to the Simmers’ real property, maintained a pier extended from the Subject Drive. Salge also moored a speed boat at a pier they situated in the Subject Drive. Testimony of Steigerwald.

61. Simmers’ predecessor in title once removed, Ken and Ronda Salge, state in an affidavit [12] that they did not expressly convey riparian rights associated with or a privilege to extend a pier from the shoreline of Blue Lake associated with the Subject Drive. Petitioners’ Exhibit 5. However, the rights associated with the Simmers’ use of the walk-ways, drive-ways and correlating lake frontage in the Harrold’s First Addition does not stem from any express right conveyed by the Salges or by the Simmers’ immediate predecessor in title. The Simmers’ and the Parkses’ rights associated with those walk-ways, drive-ways and correlating shoreline in Harrold’s First Addition were conveyed by the Harrold’s in and around 1944. Petitioners’ Exhibit 7, Pio Deed (predecessor in title to the Simmers) and Lemler Deed (predecessor in title to the Parkses) both dated October 16, 1944.

62. At an inexact time shortly after Mr. Simmers began residing in Harrold’s Second Addition in 1989 Mr. Simmers discussed with Doris Pape and Ronald Rennaker mooring a boat lakeward of the Subject Drive. Testimony of Doris Pape and Ronald Rennaker. Mr. Simmers did, in fact, construct a pier lakeward of the Subject Drive that he used and that he allowed to be used by others. Testimony of Ronald Rennaker. A large sailboat was also moored in the waters lakeward of the Subject Drive. Id.

63. The Petitioners viewed the conversation with Mr. Simmers as his request for and their grant of permission to extend a pier lakeward of the Subject Drive. Mr. Simmers viewed the conversation as notification to the Papes and the Rennakers of his intent to exercise his rights. At a later unidentified time, under the belief that they had granted Mr. Simmers permission to extend the pier and moor a boat lakeward of the Subject Drive and because the use by Mr. Simmers, in their view, exceeded the permission granted, “Rich [13] asked him to not do it.” Testimony of Ronald Rennaker. Simmers, aware of the dispute that ultimately resulted in Rennaker I, acquiesced and did not install his pier for a period of time until 2014.

64. The evidence is not disputed that the Salges and Robin McAbee [14], Simmers’ immediate predecessor in title, moored boats and maintained piers extended lakeward of the Subject Drive.[15] Testimony of Steigerwald, Testimony of Vince Simmers.

65. The Petitioners’ evidence and the Respondents’ evidence is somewhat contradictory with respect to what years or periods of time the Simmers have extended a pier from the shoreline of Blue Lake associated with the Subject Drive. However, the evidence is sufficient to conclude that for many years between 1989 and the present, the Simmers have maintained a pier and moored boats at that location.

66. Patricia Rennaker testified that the Simmers did not maintain a pier on the Subject Drive at any time from 2000 to 2006 except for the boating season in 2002. Petitioners’ Exhibits 13i – 13r. The Petitioners’ presented one photograph for each of the years 1983, 1986, 1991, 1992, 1993, 1996, 1997, and 2000 through 2008 as evidence that the Simmers did not have a pier extended from the Subject Drive during those years. Petitioners’ Exhibits 13a-e & g-r. The Petitioners’ photographs do establish that on the particular date when the photo was taken that the Simmers did not have a pier extended from the shoreline associated with the Subject Drive; however, the Petitioners’ photographs are not conclusive as to the existence or non-existence of a pier extended into Blue Lake from the Subject Drive on any other date(s) during those years.

67. It is noted that the Simmers did not own their real property in Harrold’s Second Addition until 1989, when they purchased the property on contract. Testimony of Vince Simmers. Therefore, the photographs depicting conditions in 1983 and 1986 reflect nothing as it relates to the existence or non-existence of the Simmers’ pier. Petitioners’ Exhibits 13a & b.

68. With respect to photos establishing the conditions in the years 2005 and 2006 the Papes and the Rennakers had positioned their piers in the waters immediately adjacent to the waters lakeward of the Subject Drive. Petitioners’ Exhibits 13n & o; Respondents’ Exhibit B. Vince Simmers testified that these actions deterred him from attempting to extend a pier from the Subject Drive in certain years.

69. The Simmers purchased their property in the Harrold’s Second Addition in 1989 and testified that they did extend a pier from the Subject Drive most years between 1990 and approximately 2004, when the disputes that ultimately resulted in Rennaker I arose and when the Papes placed their pier immediately along their east property boundary abutting the west side of the Subject Drive with their boat lift situated lakeward of the Subject Drive. Testimony of Vince Simmers, Respondents’ Exhibit B, Petitioners’ Exhibits 13n & o.

70. As evidence that the Simmers have not placed a pier lakeward of the Subject Drive during the years from1990 to 2004, Doris Pape, Respondent Richard W. Papes’ mother, testified that the Papes’ pier has historically been located within the waters lakeward of the Subject Drive. Testimony of Doris Pape. Other Petitioners’ evidence indicates that Doris Papes’ recollection may be mistaken.

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71. The photographs from 2000 and 2001 establish that a large tree stands on the Papes’ real property near the shoreline of Blue Lake near the westernmost edge of the Subject Drive. Petitioners’ Exhibits 12, 13i & 13j. Using the tree as a point of reference, the photograph from 2000, Petitioners’ Exhibit 13i, establishes that the Papes’ boat lift and pontoon boat is situated on the west side of the large tree and therefore west of the waters lakeward of the Subject Drive. The Papes’ boat lift and pontoon boat are clearly situated on the east side of the tree and within the waters lakeward of the Subject Drive according to the 2001 photograph. Petitioners’ Exhibit 13j. In photographs representing years before 2001, the Papes pier is located to the west of the waters lakeward of the Subject Drive but occasionally depict a boat moored on the east side of that pier in the waters lakeward of the Subject Drive. Petitioners’ Exhibits 13b, 13g, 13i. However, until 2001 the photographs do not indicate that the Papes routinely moored a boat within the waters lakeward of the Subject Drive or installed their pier or any appendage to the pier, such as the boat lift, in the waters lakeward of the Subject Drive until 2001. Id and Petitioners’ Exhibits 13j, 13l and 13m

72. The evidence is not disputed that in 2004 the Simmers complained to the Department of Natural Resources with respect to the Papes’ placement of their boatlift. In 2005, the Papes’ pier was placed in the waters of Blue Lake immediately adjacent to the west boundary of the Subject Drive and the boat lift was relocated to the west side of the pier. Compare Petitioners’ Exhibit 13m and 13n.

73. Danielle Simmers, age 26, recalled from the age of 4 or 5, playing on and taking boat trips from the Simmers’ pier that was situated in the waters lakeward of the Subject Drive. The pier remained in that location annually until near the time the Rennakers and the Papes constructed new homes, when, on at least one occasion, Patricia Rennaker ordered her off the landward portion of the Subject Drive as she was attempting to access the pier. Testimony of Danielle Simmers.

74. To add a degree of perspective, Patricia Rennaker testified that she and her husband were involved in constructing their new home in 2002. The litigation resulting in Rennaker I commenced in 2005. Rennaker I at pg. 728.

75. Simmers testified that he did maintain a pier extended from the shoreline of the Subject Drive in 1995 and for most boating seasons from 1990 through 2005. Testimony of Vince Simmers and Respondents’ Exhibit C.

76. Contrary to the Petitioners’ evidence, James Davis (Davis) recalls working on Mr. Simmers’ boat from a pier extended “right from the middle” of the Subject Drive in August 2006. Testimony of Davis, Respondents’ Exhibit A. Davis worked on the same boat, again on a pier in the same location, on a previous occasion approximately two or three years earlier.

77. Audrey Husk (Husk) moved to a residence in one of the Harrold’s Additions in 1996 and the Simmers family was one of the first people they met. Testimony of Husk. Husk testified, “My kids swam off [the Simmers’] little pier” and “rode from his boat off that pier” from 1996 until at least 2005. Husk’s testimony was certain that the Simmers maintained a pier extended lakeward of the Subject Drive from 1996 until “at least 2005.”

78. The testimony of Larry Weatherholt (Weatherholt), the owner of the “last house on Harrold Road” established that the Simmers maintained a pier on the Subject Drive “quite a few years in a row” from as early as approximately 1991, the year Weatherholt moved into the area, until the Papes and the Rennakers built their new homes.

79. Other witnesses testified that the Simmers have extended a pier from the Subject Drive many of the years since they purchased their property in 1991. Testimony of Raymond Doug Gleason, Daniel Simmers, James Worley, Stephen Widmer, LeFevre and Steigerwald. Some of these witnesses had been visitors of the Simmers and used the pier situated on the Subject Drive as invited guests. Stephen Widmer testified that he assisted Mr. Simmers with installing the pier on the Subject Drive.

80. The most reasonable conclusion to draw from the evidence is that the Simmers have maintained a pier extended lakeward of the Subject Drive, on a significant number of but not all years [16], from approximately 1990 until approximately 2005.

Conclusions of Law:

81. A “riparian owner" is an “owner of land, or the owner of an interest in land sufficient to establish the same legal standing as the owner of land, bound by a lake.” 312 IAC 11-2-19. The definition of riparian owner adopted by the Commission is consistent with the concept that “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.” Klotz v. Horn, 558 N.E.2d 1096, 1097, (1990).

82. The Papes are the fee title owners of the Lakeside Lot that abuts the shoreline of Blue Lake associated with Lot 8 in the Harrold’s First Addition and are riparian owners with respect to the shoreline of that Lakeside Lot.

83. The same is true of the Rennakers, who own the Lakeside Lot that borders on Blue Lake correlating to Lot 9 in Harrold First Addition and are riparian owners with respect to that section of shoreline by virtue of that fee title ownership.

84. The Respondents are not the owners of real property abutting the shoreline of Blue Lake. However, consistent with Klotz, that determination is not conclusive as to whether the Respondents are “riparian owners” by virtue of an ownership interest, less than fee title ownership, in real property abutting the shoreline of Blue Lake through which the Respondents are authorized to use the riparian rights.

85. The landward use of the Subject Drive was determined in Rennaker I and that determination will not be disturbed.

86. Neither the Petitioners nor the Respondents are the fee title owners of the real property associated with the Subject Drive and for this reason neither the Petitioners nor the Respondents can be viewed as “riparian owners” through the ownership of the land associated with the Subject Drive.

87. Any riparian rights possessed by either the Petitioners or the Respondents, or both of them through an interest in the Subject Drive would be through the ownership of an interest in the real property less than fee title ownership.

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88. Of interest in this proceeding is the determination whether the Drive Easement grants the Respondents’ authority to extend piers and moor boats lakeward of the Subject Drive.

89. The lake frontage associated with the Subject Drive abuts the shoreline of Blue Lake for thirty-feet and carries with it riparian rights.

90. The deeds to the property of the Arends, the Palmers and the Guenins were not offered as evidence in this proceeding.

91. The Drive Easement was granted to the Simmers and the Parkses predecessors in title, and the evidence in Rennaker I indicate these easement rights were granted to the other Respondents and many, if not all, other backlot owners.

92. With respect to easements in general,

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, any more than the holder of the servient estate can materially impair or unreasonably interfere with the use of the easement.

Rehl v. Billetz, 963 N.E.2d 1, 6 (Ind. Ct. App. 2012).

93. The Subject Drive was clearly platted for the specific use of the Lot Owners in Harrold’s Additions and not for use by the public at large. The easement associated with the Subject Drive is therefore considered a private easement. See Poznic v. Porter County Development Corp., 779 N.E.2d 1185, (Ind. Ct. App. 2002).

94. Parkison v. McCue, 831 N.E.2d 118, (Ind. Ct. App. 2005) provides the most appropriate guidance,

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

At pg. 128.

95. Important in this case is the restriction upon the Commission to consider extrinsic evidence, including evidence of historic use of the Subject Drive, when the language establishing the Drive Easement is unambiguous. Id; Parkison, supra; Spaw v. Ashley, 12 Caddnar 233 (2010), (affirmed on judicial review in Ashley v. Spaw, Allen Circuit Court, Cause No. 02CO1-1008-MI-1178 (2011)); Bull v. Trimmer et al., 14 CADDNAR 10, (2015), Klotz v. Horn, supra.

96. As previously stated, the language used by the Harrold’s to convey the Drive Easement is straightforward,

Petitioners’ Exhibit 7, Pio Deed (predecessor in title to the Simmers) and Lemler Deed (predecessor in title to the Parkses) both dated October 16, 1944

97. The Drive Easement grants to the Simmers and the Parkses, and many other Lot owners in Harrold’s Additions, including the other Respondents, the right to walk and to drive over the walk-ways and drive-way, including the Subject Drive. However, the Drive Easement, unlike the Lakeside Lot Easement, makes no reference to any access to Blue Lake.

98. In 1990, the Indiana Supreme Court considered a dispute relating to an easement associated with property situated on the shoreline of Eagle Lake in Kosciusko County. Klotz v. Horn, supra. In Klotz, the owners of the lakefront property sold a portion of the property that did not front on Eagle Lake and in doing so conveyed to the purchaser a six foot wide easement “for the purpose of access to Eagle Lake.” In later years the non-lakefront property was sold to the Klotzes who proceeded to install a pier from the easement and litigation ensued. The issue, similar to the parties’ dispute in this instant proceeding, related to whether the easement carried with it the right for the easement holder to install a pier and moor boats from the shoreline of the six foot easement. The trial court and the Indiana Court of Appeals determined that “no riparian rights [vested]” in the easement holder and the Indiana Supreme Court reversed. The Indiana Supreme Court concluded that the true inquiry should focus upon what the grantor “contemplated when they created this easement…” Klotz at 1098, citing Badger v. Hill, 404 A.2d 222, 226, (1979). See also Farnes v. Lane, 161 N.W.2d 297 (1968).

99. In Klotz, it was concluded that reference in the easement to “access to Eagle Lake” was ambiguous and therefore extrinsic, or parole evidence, was appropriately considered. In the case at hand, however, the Drive Easement offers no reference to Blue Lake whatsoever.

100. While the Lakeside Lot Easement is not at issue here, it does appear to grant easement rights to access Blue Lake, which adds clarity to the intent of the Drive Easement that is under consideration here.

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101. Read in conjunction, the intended purpose of the Drive Easement was intended for passage on foot, or by vehicle with respect to the forty-foot driveway, as was previously determined in Rennaker I, to gain access to the easement rights conveyed by the Lakeside Lot Easement.[17]

102. The Respondents, as the holders of the dominant estate in the Subject Drive, may not subject that drive to burdens beyond those contemplated by the grantor of the easement. Skilbred, et al. v. Ward, et al., 13 CADDNAR 125 (2013) (Appendix A); Rehl v. Billetz, supra. The Drive Easement that, as applicable to this proceeding specifies the appropriate uses of the Subject Drive, did not contemplate the extension of piers.

103. The Respondents did not specifically articulate a claim to a right to extend a pier from the Subject Drive by virtue of a prescriptive easement. The evidence fails to support such a conclusion in any event.

104. To establish the existence of a prescriptive easement the Respondents would need to demonstrate “clear and convincing proof of (1) control, (2) intent, (3) notice, and (4) duration” Bass v. Salyer, 923 N.E.2d 961, 965, (Ind. Ct. App. 2010) citing Wilfong v. Cessna Corp., 838 N.E.2d 403 (Ind. 2005).

105. Most notably, the record here is certain that the use of the Subject Drive for the extension of a pier by the Respondents has not been continuous during the past twenty year period of time. “The acquisition of a prescriptive easement may be defeated by a showing that the use was not continuous and uninterrupted for the necessary twenty year period. Either an interruption from an act of the owner of the servient estate or a voluntary abandonment by the adverse user may prevent the easement from ripening.” Bromelmeier v. Brookhart, 570 N.E.2d 90 (Ind. Ct. App. 1991) citing Faukboner v. Corder, 26 N.E. 766, (1891), See also Bass v. Salyer, supra.

Final Order:

106. This final order is limited in scope to address only the rights of the parties to this proceeding who are identified as the Petitioners, Ronald and Patricia Rennaker and Richard W. and Karen M. Pape, and the Respondents, Vince and Vicki Simmers, Larry and Sandy Guenin and Violet Coyle, Tim and Melynda Arend, Lynn and Deloris Palmer and Rich and Deb Parks.[18]

107. This final order is also limited in scope to the matters placed in issue by the Petitioners, which is only related to the rights of the Respondents with respect to the shoreline and waters lakeward of the thirty-foot wide Subject Drive situated between Lot 8 and Lot 9 in Harrold’s First Addition.

108. The Drive Easement, as stated in the deeds conveying Lots in Harrold’s Second Addition, does not grant the right to the Respondents to use the riparian rights associated with the shoreline of the thirty-foot wide Subject Drive situated between Lot 8 and Lot 9 in Harrold’s First Addition for the placement of piers or the mooring of boats.

109. Similarly, the deeds conveying the Platted Lots and the Lakeside Lots in Harrold’s First Addition convey no grant of authority to the Petitioners allowing their use of the riparian rights associated with the shoreline of the thirty-foot wide Subject Drive situated between Lot 8 and Lot 9 for the placement of piers or the mooring of boats.

110. Neither the Respondents, nor the Petitioners, are entitled to exercise riparian rights associated with the shoreline of the thirty-foot wide Subject Drive situated between Lot 8 and Lot 9 for the placement of piers or the mooring of boats.

[1] The parties acknowledged that other Lot owners have a valid right to use the easement over the Subject Drive and may have a comparable claim to a right to use the associated riparian rights. However, the parties indicated that only the four additional Lot Owners identified as Respondents live within a reasonable proximity to the Subject Drive such that they might reasonably exercise those rights. Administrative Law Judge Jensen noted during the prehearing conference that “the persons joined [as parties] could be limited to those with the most potential to be impacted. However, …any final determination of this proceeding would be applicable to only those parties who were provided notice.”

[2] 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.

[3] The Petitioners focused almost exclusively upon the language restricting passage on land to being “on foot”, which was an issue considered in Rennaker I. The means of passage upon the land was decided in Rennaker I and that decision will not be disturbed here.

[4] See Footnote 2.

[5] The Palmers and the Parkses failed to appear for the administrative hearing. Each provided affidavits to the Petitioners stating, “…4. That they disapprove of “back lot owners” or owners of non-riparian properties to exercise the right of installation of piers/docks and the mooring of boats when the easement provides only for “access” to the water “on foot” and not for the installation of piers/docks or the mooring of boats. 5. That the language in Harrold’s Second Addition warranty deed does not grant them riparian rights as the own non-riparian property.

Petitioners’ Exhibits 6a and 6b. The Palmers and Parkses, as Lot Owners in Harrold’s Second Addition, stand in the same position as the remaining Respondents and will be bound by the determinations established herein. Whether they choose to act upon rights granted, if any, is their prerogative.

[6] The Respondents may possess additional rights through the Lakeside Lot Easement that are not being considered in this proceeding due to the limited scope as established by the Petitioners’ request for dispute resolution.

[7] The opinions of Anderson regarding the intended purpose of the Subject Drive are contrary to the decision of the Court of Appeals in Rennaker I. Additional evidence was elicited from Anderson about the intent to allow vehicular traffic on the forty-foot road along the shoreline of Blue Lake. The administrative law judge advised the parties to this proceeding on multiple occasions that the decision issued in this proceeding would not disturb the decision previously rendered in Rennaker I and the determination with respect to the use of the riparian rights associated with the Easement would be consistent with that determination. Issues associated with the forty-foot easement along the shoreline of Blue Lake is not at issue in this proceeding and the question whether vehicular traffic was intended on the Subject Drive and the forty-foot easement was decided in Rennaker I and will not be disturbed by this decision.

[8] The opinions of Anderson regarding the intended purpose of the Subject Drive are contrary to the decision of the Court of Appeals in Rennaker I. Additional evidence was elicited from Anderson about the intent to allow vehicular traffic on the forty-foot road along the shoreline of Blue Lake. The administrative law judge advised the parties on multiple occasions that the decision issued in this proceeding would not disturb the decision previously rendered in Rennaker I and the determination with respect to the use of the riparian rights associated with the Subject Drive would be consistent with that determination.

[9] Anderson’s personal preference stated in 2015 cannot alter the intent of the platters of Harrold’s Additions as determined in Rennaker I in 2009.

[10] The Affidavits of Bianski and the Peters were objected to as hearsay and for that reason reliance upon these affidavits is limited in accordance with Indiana Code § 4-21.5-3-27. No additional evidence was presented regarding the historic use that has been made of the platted drive-ways referred to by the affiants.

[11] The house the Rennakers presently live in was built in 2002 after the house that was originally constructed on Lot 9 was razed.

[12] The Affidavit of the Salges was objected to as hearsay and for that reason reliance upon the affidavit is limited in accordance with Indiana Code § 4-21.5-3-27.

[13] It is not clear in this instance if Ronald Rennaker’s reference to “Rich” is a reference to Richard W. Pape, the Respondent in this proceeding, or possibly to Doris Pape’s husband, Richard W. Pape, Sr.

[14] The spelling of the McAbee name is not clear in the record.

[15] Through the Rennakers’ questioning of witnesses it may be inferred that they believe they granted permission to the Salges and to McAbee to maintain piers and moor boats; however, there is no actual testimony to the effect. Furthermore, as has been established previously, the Rennakers do not own the Subject Drive and as such are in no position to grant permission or to require another person to obtain their permission to access Blue Lake through the Subject Drive.

[16] It is acknowledged that temporary piers are removed in winter and reinstalled annually. The evidence is not sufficient to establish that the Simmers installed their pier each and every year, but the evidence suggest the pier was installed for a significant number of years

[17] The Commission has experienced occasions in which historic pier placement has occurred but not in a manner clearly consistent with the strictures of the conveyed rights to the use of shoreline property. See Spaw v. Ashley, 12 CADDNAR 233, 242, (2010). If a future determination concludes that the Lakeside Lot Easement grants the use of the riparian rights along the shoreline associated with the Lakeside Lots to backlot owners, upon proper notice to or agreement of all interested parties, it may be reasonable to allow the exercise of those riparian rights using the shoreline associated with the drive-ways and walk-ways as opposed to leaving intermittent lengths of shoreline untouched.

[18] Based upon the evidence of record along with the statement of facts contained in Rennaker I, it is reasonably concluded that the original deeds of conveyance executed by the Harrold’s to Respondents, Larry and Sandy Guenin and Violet Coyle, Tim and Melynda Arend, Lynn and Deloris Palmer, contain the same or equivalent language as that contained within the deeds executed in favor of the predecessors in title of Vince and Vicki Simmers and Rich and Deb Parks. This order is subject to revision if this presumption is, in the future, determined to be in error.