CADDNAR
[CITE: Scheiber v. Mast, 14 CADDNAR 133 (2016)]
[VOLUME 14, PAGE 133]
Cause#: 15-137W
Caption: Scheiber v. Mast
Administrative Law Judge: Wilson
Attorneys: Snyder (Scheiber); Patterson (Mast); Harcourt, Wooding (DNR)
Date: December 22, 2016
FINAL ORDER
138 The Masts are not riparian owners and have no riparian rights with respect to the shoreline of the property identified as a Public Park in the plat of Lake View Addition and as such are not entitled to extend a pier from that shoreline.
139 The Masts are ordered to remove the Mast pier along with all existing support structures from Knapp Lake lakeward of the Public Park identified in the plat of the Lake View Addition.
140 The Masts are permanently enjoined from placing a pier or other temporary structure within the waters of Knapp Lake at the shoreline of the Public Park identified in the plat of the Lake View Addition.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
Statement of the Proceeding and Jurisdiction
1 On November 30, 2015, Joseph Scheiber and Cynthia Scheiber (collectively referred to as “the Scheibers”) filed a Petition for Administrative Review (“Petition”) with the Natural Resources Commission (“the Commission”) Division of Hearings. The Petition seeks relief under 312 IAC 11-1-3 against John D. Mast arising from a dispute involving the placement by John D. Mast of a pier and the docking of boats in the waters of Knapp Lake, a public freshwater lake located in in Noble County, Indiana.
2 In the Petition, the Scheibers maintain that they are the owners of Lot #1 in the Lakeview Addition to Knapp Lake and that their lot fronts on Knapp Lake. The Scheibers further maintain that a dispute exists as to whether John D. Mast has any riparian rights and whether John D. Mast has placed a pier in the riparian area of the Scheibers. The Scheibers request an injunction prohibiting John D. Mast from placing piers or mooring boats in the Scheibers’ riparian area and other proper relief.
3 The Scheibers’ Petition initiated a proceeding governed by Indiana Code (“IC”) 4-21.5-3, sometimes referred to as the “Administrative Orders and Procedures Act” (“AOPA”) and the administrative rules adopted by the Commission at 312 IAC 3-1 to assist with the implementation of AOPA.
4 Administrative Law Judge (“ALJ”) Dawn Wilson was appointed under IC 14-10-2-2 to conduct this proceeding.
5 On December 8, 2015, the Department of Natural Resources (“Department”) filed its “Joint Appearance of Counsel for Department of Natural Resources for a Limited Purpose and Request for all filings, Discovery Requests, Notice, Reports, and Orders”. For the reason that the Department is entrusted to hold and control public freshwater lakes for the benefit of the public pursuant to IC 14-26-2-5, the Department’s request was granted. In addition to the requirement that the parties serve one another, the parties were ordered to serve copies of all pleadings and documents filed in the proceeding on the Department. In addition, the parties were ordered to serve the Department with copies of any discovery request served by a party on another party.
6 Following the issuance of service of notice to the Scheibers, John D. Mast and the Department, ALJ Wilson conducted a Prehearing Conference on December 29, 2015, in Columbia City, Indiana. During the Prehearing Conference:
a The Scheibers asserted that they are riparian owners due to their ownership of Lot #1 of Lake View Addition.
b Mary Bradley and Thomas Mast appeared and asserted their co-ownership interest in the property owned by John D. Mast. The two siblings of John D. Mast were added as parties to the proceeding under the authority of 312 IAC 11-3-2(b). Hereinafter, John D. Mast, Mary Bradley and Thomas Mast are collectively referred to as “the Masts”.
c The Masts asserted no interest in any lot within the platted subdivision known as Lake View Addition. The Masts claim their deed includes an easement that grants them the right to place a pier within the disputed riparian area.
d Mary Bradley asserted knowledge of additional persons with similar easement interests and assumed the obligation to file the names and addresses of any person necessary in the proceeding to allow a full and fair determination of relevant riparian rights. Thereafter, no names and addresses were filed by Mary Bradley.
7 On January 7, 2016, attorney Rex Patterson filed his Appearance on behalf of the Masts.
8 On January 8, 2016, the ALJ granted the Masts’ “Motion for Enlargement of Time of Discovery Deadline” extending the discovery deadline to February 22, 2016.
9 On February 29, 2016, and April 12, 2016, Status Conferences were held, with all parties present telephonically, by counsel.
10 On June 1, 2016, “Respondents’ Motion to Continue Telephonic Final Status Conference” set to be heard on July 5, 2016, was granted and the continued Final Status Conference was held on July 11, 2016, telephonically.
11 On August 4, 2016, an Administrative Hearing of the facts was conducted as scheduled, in Columbia City, Indiana. The Scheibers appeared by Joseph Scheiber and Cynthia Scheiber, and by counsel, Stephen Snyder. The Masts appeared in person and by counsel, Rex Paterson. The Department appeared by counsel, Edward Harcourt.
12 The parties offered an oral stipulation to the authenticity of any public record offered as an exhibit at the administrative hearing. The ALJ accepted the party stipulation.
13 Following the presentation of all evidence in the matter, the parties were offered the opportunity to present briefs concerning issues relevant to resolution of the proceeding on or before September 30, 2016. On September 30, 2016, Attorney Snyder submitted “Claimants’ Post-Trial Brief” and Attorney Patterson submitted “Respondent’s Post-Trial Brief”.
14 The Lake Preservation Act places full power over public freshwater lakes in the State of Indiana. The State, through the Department, is responsible to “hold and control all public freshwater lakes in trust for the use of all the citizens of Indiana for recreational purposes.” IC 14-26-2-5(d), Indiana Dept. of Nat. Res. v. Lake George, 889 N.E.2d 361 (Ind. App. 2008) and Lake of the Woods v Ralston, 748 N.E.2d 396, 401 (Ind. App. 2001).
15 The Commission is responsible for controlling activities occurring “over, along, or lakeward of the shoreline or water line of a public freshwater lake”, IC 14-26-2-23, including the placement and maintenance of temporary structures, including piers. The Commission is also charged with resolving “a dispute among persons with competing riparian interests” associated with a public freshwater lake. Id
16 The Commission is the “ultimate authority” for determinations under the Lake Preservation Act and has adopted rules at 312 IAC 11 to assist with administration of the Lake Preservation Act. IC 4-21.5-1-15 and 312 IAC 3-1-2.
[VOLUME 14, PAGE 134]
17 The Commission has jurisdiction over the subject matter of this proceeding and over the persons of the parties.
Findings of Fact[1]
18 Knapp Lake, in Noble County, is a public freshwater lake as defined at IC 14-26-2-3 and 312 IAC 11-2-17 and is listed as such in the “Listing of Public Freshwater Lakes”, Information Bulletin #61 (Fifth Amendment), Indiana Register, http://www.in.gov/legislative/iac/20160127-IR-312160050NRA.xml.pdf (January 27, 2016), page 6.
19 Lake View subdivision was platted into three additions through the recording of three separate plats. The owners of the real property at the time the plats were created were Frederick Stapleton and his mother, Hilda Stapleton.
a Lake View Addition to Knapp Lake (“Lake View Addition”) was created by the Stapletons on April 30, 1955, approved by the Board of Commissioners for Noble County on May 3, 1955, and duly entered for taxation on May 4, 1955. See Exhibit A.[2]
i) The plat for Lake View Addition includes Lots 1-17, a “Public Park” and a “Road.” The survey within the plat of Lake View Addition includes the shoreline of Knapp Lake.
ii) A “Public Park” forms both the northeastern and northwestern boundaries of Lake View Addition. The Public Park that forms the northeastern boundary of Lake View Addition is bounded by Knapp Lake.
iii) A “Road” is adjacent to the southeastern and southwestern boundary of the Public Park. The 20’ “Road” is wholly within Lake View Addition. The parties consistently identified the “Road” as “South Madison Dive” and hereinafter the Road will be referred to as South Madison Drive in this decision.
iv) Adjacent to a portion of South Madison Drive, in a southeastern and southwestern direction is Lot #1, currently owned by the Scheibers.
See Exhibit A.
b The Second-Addition-to Lakeview to Knapp Lake (“Second Addition”) was entered for taxation on October 7, 1955. This plat was approved by the Board of Commissioners for Noble County on October 4, 1955, and duly entered for taxation on October 7, 1955. The Second Addition is adjacent to and generally southeast of Lake View Addition. The Second Addition is comprised on eight lots that are each separated from Knap Lake by a single “Easement” identified on the plat. The Easement forms the northern most boundary of the Second Addition and fronts on Knapp Lake. A Road within the addition forms the southernmost boundary of this addition. The Road is not the same road that is in the plat described in paragraph 19(a) above. See Exhibit 4, page 1.
c The Third Addition to Lakeview Addition to Knapp Lake (“Third Addition”) was approved by the County Commissioners and recorded into the records of Noble County on August 15, 1958. The Third Addition includes 42 lots and references easements within the plat with more specificity than the earlier plats. An “Easement for back Lots #28-33 only” is located at the shoreline of Turkey Creek. The plat also references an “Easement for Lots #34 through 42 only” at Lot #18 to Bause Lake. This plat specifically states that some of the lots run “to [the] water’s edge”. See Exhibit 4, page 2.
20 The Masts’ property is not a part of any section of the Lake View subdivision. The Masts’ property is generally located to the west of Lake View Addition. In that a store was on the property for some period of time, the Masts’ property was commonly referred to by the parties and will hereinafter be referred to as the “Store Property.” See testimony of Mary Bradley, Exhibit A and Exhibit 4.
21 In order to assist the reader’s understanding of the relevant areas, a portion of Exhibit 5 is being reproduced here. Three markers have been added to the aerial photograph to identify Knapp Lake, Lot #1 and the Store Property. Generally, the top of the reproduction represents North:
22 On January 11, 2011, Dolores Ohnesorge was the owner of Lot #1. Prior to her conveyance of Lot #1 to the Scheibers, she obtained a permit from the Department to construct a “new concrete seawall across 20´ of the applicant’s 40´ frontage…. [at] 0758 South Madison Drive….”, the mailing address for Lot #1. Thereafter, a seawall was installed over 10 feet of Knapp Lake shoreline, within the area identified in the plat of Lake View Addition as the Public Park. See testimony of Cynthia Scheiber (“C. Scheiber”), Exhibits C and E.
23 On September 11, 2013, a Warranty Deed from Delores Ohnesorge to the Scheibers was recorded for “Lot Number 1 in Lake View Addition of Knapp Lake, Washington Township, Noble County, Indiana. Commonly known as 758 Madison Drive, Cromwell, Indiana, 46732. Tax Pin: 57-18-04-200-044-000-018....SUBJECT to all conditions, easements, restrictions and limitations of record, as well as all applicable zoning ordinances….” See Exhibit 1.
24 A 2013 survey shows that the dimensions for Lot #1 are 50 feet by 100 feet and that the lot is bounded by:
a A “20´ R/W” identified in the survey as “South Madison Drive” to the northwest.
b “South Madison Drive 20´ R/W” to the northeast.
c Lot #2 to the southeast.
d Lot #14 to the southwest.
See Testimony of C. Scheiber and Exhibit C.
25 The survey further identifies a distance of 36´± from the boundary of Lot #1, through South Madison Drive and the “Public Park Area” to the “Waters Edge”. See testimony of C. Scheiber and Exhibit C.
26 The Scheibers pay real estate taxes on Lot #1. See testimony of C. Scheiber.
27 The Scheibers do not pay taxes for any part of South Madison Drive. See testimony of C. Scheiber.
28 Noble County maintains South Madison Drive. See testimony of C. Scheiber.
29 The Scheibers maintain a pier at the shoreline of Knapp Lake lakeward of Lot #1 that is connected to the seawall installed by Dolores Ohnesorge. C. Scheiber and Exhibit M.
30 The Masts’ maintain a pier at the shoreline of Knapp Lake that is installed in a northwesterly direction from the Scheibers’ pier. See testimony of C. Scheiber and Exhibit M.
[VOLUME 14, PAGE 135]
31 The Scheibers did not give the Masts permission to place a pier in the area where the Masts’ placed their pier. See testimony of C. Scheiber.
32 The Scheibers have experienced difficulty mooring their pontoon at their pier due to the proximity of the Masts’ pier. See testimony of C. Scheiber.
33 The following encumbrances on title to the Store Property are relevant to a decision in this proceeding:
a A Warranty Deed was issued by Frederick Stapleton and his mother, Hilda Stapleton, to Walter and Nellie Long for .92 acres on May 2, 1955. The deed was recorded on October 14, 1957. See Exhibit 9.
b Walter Long owned the Store Property until 1964, when Charles and Rosemary Freel bought the Store Property. See testimony of Jodi Freel and Charles Freel (son).
c In 1968, after Charles Freel passed away, Rosemary Freel married Frederick Stapleton. After their marriage, Frederick Stapleton helped to run the Store. See testimony of Jodi Freel.
d On April 1, 1970, Hilda Stapleton, her son Frederick Stapleton and Rosemary Stapleton, formerly Rosemary Freel, wife to Frederick, issued a Warranty Deed for three tracts to Victor and Josephine Trim, as tenants by the entirety.
i) The deed was entered for taxation on April 6, 1970. Tracts 1 and 2 of the three tracts conveyed to the Trims total the .92 acres identified in the Warranty Deed referenced above in paragraph 33a that was recorded October 14, 1957.
ii) By reasonable inference it is determined that prior to the date of this deed, Fredrick Stapleton and his mother regained ownership of the property that had been previously conveyed in 1957.
iii) By reasonable inference it is also determined that Rosemary Stapleton gained an ownership interest in the three tracts identified in the deed prior to the recording of this deed.
iv) No evidence was presented at the hearing to dispute the ownership of the property referenced in this deed. See Exhibit 10.
e On May 5, 1975, Josephine Trim, the surviving widow of Victor Trim, entered into an Agreement for Sale of Real Estate for the three tracts identified in the deed referenced in Exhibit 10, to Mast Enterprises, Inc. an Indiana for Profit Corporation. See Exhibit 7.
f Josephine Trim, the surviving spouse of Victor Trim, issued a Warranty Deed for the three tracts identified in the deed referenced in Exhibit 10 to Clifton M. Mast and Ruth D. Mast, husband and wife. The deed was recorded into the tax records of Noble County on July 28, 1981. See Exhibit 8, pages 2-4.
g Following the death of Clifton Mast in 1992, Ruth Mast issued a Quit Claim Deed to George C. Mast,[3] Thomas B. Mast, John D. Mast and Mary Bradley as tenants in common and reserved a life estate. On July 23, 1992, the deed was recorded in Noble County Recorder’s office. See Exhibit 8, pages 1-2.
h Ruth Mast passed away in October of 2013. See testimony of Mary Bradley.
34 No evidence was presented to show when the Store first began operation.
35 John Pence currently lives at a Knapp Lake property. He personally used a pier to access the Store prior to 1963, when he began his military service. He also utilized the pier after he returned from military service in 1965. See testimony of John Pence.
36 The Store was in operation in 1964. See testimony of Jodi Freel and Charles Freel (son).
37 Siblings, Charles Freel (son) and Patricia Bowers worked at the Store in their youth. See testimony of Charles Freel (son) and Patricia Bowers.
38 A sign posted on the pier in the 1960s and 1970s was marked “Store.” The pier allowed public access to the Store by boaters from Knapp Lake. See testimony of John Mast.
39 Boaters historically utilized the pier that was extended lakeward from the shore of the Public Park beyond the point where South Madison Drive terminates.
40 To access the Store, people who moored at the Store pier, now known as the Masts’ pier, would traverse the area subsequently platted as the Public Park and South Madison Drive before arriving at the Store Property. See testimony of Charles Freel (son) and Patricia Bowers.
41 The Store pier that was placed by the Freels when they owned the store in the 1960’s, was placed lakeward of South Madison Drive on the shoreline of the Public Park. The pier placed by the Freels that was used for public access to the Store was located in the same general location as the Masts’ pier. See testimony of Jodi Freel and Charles Freel (son).
42 The pier located at the Public Park beyond the terminus of South Madison Drive was also utilized by the Masts, their parents, and the prior owners of the Store Property. See testimony of John Pence.
43 The Masts’ pier is the same pier that was commonly used by the public to access the Store before the Store’s closure. See testimony of John Pence.
44 Mary Bradley moved with her parents to Knapp Lake in 1975 when her parents bought the Store Property from Victor and Josephine Trim. See testimony of Mary Bradley.
45 John D. Mast installed the current Mast pier in 1975 lakeward of the Public Park at a point consistent with the terminus of South Madison Drive. The pier provided public access to the Store from the waters’ edge of Knapp Lake. The Mast family also used the pier for their own personal use. See testimony of Mary Bradley.
46 Since 1975, there have been repairs made to the pier, but there has been no change in the location or configuration of the Masts’ pier. See testimony of John Mast and Mary Bradley.
47 When Dolores Ohnesorge installed a seawall, the poles for the Mast pier were removed but the Mast pier was reinstalled in the same location. See testimony of John Mast.
48 The Store ceased operation in 1986 or 1987. See testimony of Mary Bradley and John Mast.
49 Since the Store closed, the Masts’ pier has been primarily used by the Mast family, most commonly by John D. Mast and his father. John D. Mast has been the primary user of the Mast pier since the death of his mother in 2013. See testimony of John Mast.
50 The weight of the evidence supports the following conclusions:
a A pier was placed by the owners of the Store Property lakeward of the Public Park at a point consistent with the terminus of the western portion of South Madison Drive.
b Members of the public were encouraged to use the pier.
c Members of the public did use the pier and accessed the Store by traversing the property now known as the Public Park and South Madison Drive.
d Public use of the pier to access the Store Property was continuous for over 20 years, from the early 1960’s until the closure of the Store in 1986 or 1987.
51 Jodi Freel was informed by her step-father, Frederick Stapleton, that he intended for all of the back lots to have a pier or other access to the lake and that it was his intention to designate lake access areas.[4] See testimony of Jodi Freel.
52 Piers belonging to Lake View Addition lot owners, including the Scheibers’ pier, have been placed lakeward of the Public Park for an undetermined number of years. See testimony of C. Scheiber and Exhibit M.
53 Patricia Bowers, Jodi Freel and Charles Freel (son) are siblings. In the 1950’s, before their parents, Charles and Rosemary Freel, purchased the Store Property, the family moved to the Knapp Lake area and purchased property that is not part of the property now known as Lake View subdivision. At that time, the Freels extended a pier from the property currently identified as the “Public Park” within Lake View Addition. See testimony of Jodi Freel.
54 Misty Marquez is a back lot owner of Lots #15-16 in Lake View Addition. She previously installed a pier next to the Masts’ pier lakeward of the Public Park for her own use. That pier is no longer in place. The deed she received for this property did not identify an easement. See testimony of Misty Marquez.
[VOLUME 14, PAGE 136]
55 Mary Bradley was aware of at least one other owner of property outside the Lake View Addition who placed a pier lakeward of the Public Park next to the Mast Pier. That pier is no longer in place. See testimony of Mary Bradley.
56 In a westerly direction from the Masts’ pier, there is a pier post, but there is no longer a pier in that location. See testimony of John Mast and Mary Bradley.
Conclusions of Law
Commission authority
57. The Scheibers dispute that John D. Mast is a riparian owner, whether the Masts have any riparian rights and aver that John D. Mast has placed a pier and docked boats in the waters of Knapp Lake in a fashion that encroaches into the riparian area of the Scheibers. See the Scheibers’ Petition for Administrative Review.
58. The Masts claim they have sufficient authority to place a pier at the shoreline of Knapp Lake within an area described by the plat for Lake View Addition as the Public Park.
59. The Commission’s responsibility to control activities over, along or lakeward of the shoreline of public freshwater lakes includes the placement of a pier. Piers placed within an Indiana public freshwater lake require, as a general premise, that a person may not place a structure “over along or lakeward of the shoreline or waterline of a public freshwater lake”, unless the person obtains a permit from the Department. IC 14-26-2-23.
60. Temporary structures may qualify for placement without a written license from the Department. A temporary structure, including a pier, qualifies for a general permit by meeting the following criteria:
In order for a temporary structure to qualify, the structure must satisfy each of the following:
(1) Be easily removable.
(2) Not infringe on the access of an adjacent landowner to the public freshwater lake.
(3) Not unduly restrict navigation.
(4) Not be unusually wide or long relative to similar structures within the vicinity on the same public freshwater lake.
(5) Not extend more than one hundred fifty (150) feet from the shoreline or water line.
(6) If a pier, not extend over water that is continuously more than six (6) feet deep to a distance of one hundred fifty (150) feet from the shoreline or water line.
(7) Not be a marina.
(8) Not be a group pier.
(9) Be placed by a riparian owner or with the written approval of a riparian owner.
312 IAC 11-3-1(b)
61. “A person may seek administrative review of the placement or maintenance of a structure under [312 IAC 11-3-1 or 1.2]…of this rule.” 312 IAC 11-3-2.
62. The Indiana Court of Appeals has acknowledged the responsibility of the Department and the Commission in implementing the statutory process for the issuance of permits for piers on public freshwater lakes. In addition, the Court has acknowledged the jurisdiction of the Commission to determine the scope of a landward property right, including an easement, “to the extent necessary to carry out the process of issuing permits for the placement of piers on public freshwater lakes.” Kranz v Meyers Subdivision, et al, 969 N.E.2d 1068, 1078 (Ind. App. 2012).
63. It is the practice of the Commission to exercise that authority with restraint. Bowman v Walls, 14 CADDNAR 85, 89 (2016).
The Masts’ Property Interest in Land Appurtenant to Knapp Lake by Grant
64. The Scheibers’ request for administrative review includes the disputed issues concerning whether the Masts are riparian owners or have riparian rights. See Scheibers’ Petition for Administrative Review.
65. Riparian rights do not necessarily constitute an independent estate and are not property rights per se. They are licenses or privileges that constitute property rights of a qualified or restricted nature. A person must have a property interest in the land appurtenant to the water before the person can acquire rights to use the water. Bass v. Salyer, 923 N.E.2d 961, 971 (Ind. App. 2010) and Ctr. Townhouse Corp. v. City of Mishawaka, 882 N.E.2d 762, 767-68 (Ind. App. 2008).
66. “The term ‘riparian rights’ indicates a bundle of rights that turn on the physical relationship of a body of water to the land abutting it.” Plymate v Patton and DNR, 13 CADDNAR 28, 31 (2012).
67. “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.” Parkinson v McCue, 831 N.E.2d 118, 128 (Ind.App.2005).
68. "Riparian owner" means the “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
69. The Masts are the current owners of the Store Property.
70. No portion of the Store Property is bounded by Knapp Lake.
71. The Masts do not assert that they hold fee simple title to property bordering on Knapp Lake.
72. The Masts are not fee title riparian owners.
73. However, a determination that the Masts are not owners of property that is adjacent to the shoreline of a public freshwater lake does not settle the question of whether the Masts are entitled to install and use a dock in the proper enjoyment of an easement. Klotz v Horn, 558 N.E.2d 1096, 1097 (Ind. 1990), citing Farnes v Lane, 161 N.W.2d 297, 301 (Minn. 1968). “The issue is not whether the easement holder attains riparian ownership status, but rather, whether he is entitled to use the riparian rights of the servient tenant who has given him access to the body of water bordering the servient estate.” Emphasis supplied by court in Klotz at 1097.
74. The dominant owners of an easement may be entitled to use the riparian rights of the servient tenant in accordance with the conveyance by the express language in the creating document. Klotz, supra, at 1098.
75. A review of the deed from Frederick Stapleton and his mother, Hilda Stapleton, to Walter and Nellie Long that was signed on May 2, 1955 (recorded in 1957) for the Store Property reveals no easement reserved or otherwise identified to allow the Store Property owners, including the Masts, to use of the property that lies between the Store Property and Knapp Lake.
76. At some time, Frederick Stapleton and his mother regained ownership of the Store Property and again, along with Frederick’s wife, deeded the property on April 1, 1970. No easement appears in this conveyance that would provide the Store Property owners, including the Masts, the authority to use the property between the Store Property and Knapp Lake for any purpose.
77. No easement appears in any deed presented as evidence in this matter that specifically grants authority to the owners of the Store Property, including the Masts, the authority to use South Madison Drive or the Public Park to Lake View Addition, including the Knapp Lake shoreline.
78. The Masts are not fee title owners of the Public Park. In addition, the Masts have not been granted an express easement in property that would authorize them, as owners of the Store Property, to use the shoreline of Knapp Lake. The Masts have shown no grant of a property interest that would allow them to place a pier at the shoreline of Knapp Lake.
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The Masts’ Property Interest in Land Appurtenant to Knapp Lake by Prescriptive Easement
Public Park shoreline-Public or Private use
79. The Masts accurately state in Respondent’s Post-Trial Brief that a property right through an easement may be created by grant or acquired by prescription. Brown, et al v Heidersbach, et al, 360 N.E.2d 614, 618 (Ind. App. 1977).
80. The Masts argue that despite the absence of a specific grant of a property interest to them, the Lake View Addition plat provides a right to use South Madison Drive and the Public Park to Lake View Addition and to access and use the Knapp Lake shoreline.
81. In the Lake View Addition plat, on April 30, 1955, Frederick Stapleton (and his mother, Hilda Stapleton) “divided the area into lots, easements and driveways…” The plat identifies a “Road”[5] and a “Public Park”. See Exhibit A.
82. The Store Property is not included within the plat of Lake View Addition that was signed by Frederick Stapleton and his mother, Hilda Stapleton, on April 30, 1955.
83. A developer may intend to establish a road within a plat either for the private use of the residents of the addition or for general public use. A dedication for public use of a road adjacent to a public freshwater lake can be accomplished by common law or by statute. Altevogt v. Brand, 963 N.E.2d 1146, 1151 (Ind. App. 2012).
84. Statutory dedication requires (1) platting of the street, (2) acknowledgment by the grantor, (3) proper municipal approval, and (4) recording. Poznic v Porter Cnty. Dev. Corp., et al, 779 N.E. 2d 1185, 1193 (Ind. App. 2002).
85. Evidence of the platting, acknowledged by the grantors as well as the recording of the plat for Lake View Addition was admitted as evidence in this proceeding. The plat also reveals that it was approved by the Board of Commissions for Noble County on May 3, 1955. Therefore, the areas in the plat designated for public use, such as the Road (South Madison Drive) and Public Park, were statutorily dedicated.
86. Even if South Madison Drive and the Public Park were not statutorily dedicated, those portions of the plat would be subject to a common law dedication, be it express or implied, for public use if two elements are found: “(1) the intent of the owner to dedicate and (2) the acceptance of the public of the dedication…The intention must clearly appear, and the acts and declarations of the owner relied on to establish it must be clear, convincing, and unequivocal.” McAllister v Sanders, 937 N.E. 2d 378, 383 (Ind. App. 2010), citing Sagarin v. City of Bloomington, 932 N.E.2d 739, 747 (Ind. App. 2010).
87. As to the first element of a common law dedication required by the McAllister court, the Lake View Addition recorded plat identifies a “Road” and a “Public Park.”
88. The Indiana Court of Appeals in McAllister found that “the existence of the street shown by a public plat accompanied with use by the public as a street; is evidence of a parol dedication accompanied by public use.” McAllister, at 383, citing North Snow Bay, Inc. v. Hamilton, 657 N.E.2d 420, 423 (Ind. App.1995).
89. In addition, an intent to dedicate a portion of a plat to public use for a named street was found in Chaja v Smith, 755 N.E.2d 611 (Ind. App. 2001).
90. “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.” Parkinson v McCue, 831 N.E.2d 118, 128 (Ind. App. 2005), quoting Brown.
91. Subsequent to the recording of the Lake View Addition plat, a plat for the Third Addition to Lakeview was recorded by the same grantors. In that plat, specific recipients of an easement were identified, “Easement for back Lots #28-33 only”. In the Lake View Addition plat no such limitation appears. If the grantors intention was to limit the Public Park to a specific group, they would have done so, consistent with the plat they created for the Third Addition. Because he referenced Public Park with no limitation in the Lake View Addition plat, it is more likely than not that the grantor intended the Public Park to be accessible for the general public. However, the grantor’s intent must be clear, convincing and unequivocal to find a common law dedication. No further information found within the plat is available to find his intent.
92. While the term Public Park would, most commonly, be interpreted to mean, the general public, the public referred to by the grantor in this case, could be limited to the lot owners of Lake View Addition.
93. Extrinsic evidence may be used to ascertain the intent of the grantors creating a written easement only where the language establishing the easement is ambiguous. Gunderson v Rondinelli, 677 N.E.2d 601, 603 (Ind. App. 1997), citing Klotz, supra, at 1098.
94. 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. App.1999), trans. denied. Parkinson v McCue, supra, at 128.
95. Finding the term “Public Park” to be ambiguous, extrinsic evidence is warranted for consideration.
96. Supporting the conclusion that South Madison Drive and Public Park were intended to be set aside for public use is the testimony of Jodi Freel. She credibly reported in her testimony that her step-father, Frederick Stapleton, a creator of the Lake View Addition, told her that his intent was to provide designated lake access for all back lots.
97. In addition, the creator of the plat, Frederick Stapleton, used South Madison Drive and Public Park, after conveying his interests in the Store Property.
98. Stapleton also encouraged the public use of the Public Park when he owned the Store Property.
99. The weight of the evidence supports a clear intent by the grantor of Lake View Addition to set aside the South Madison Drive and the Public Park for public use.
100. In McAllister, the Court found that, under the second element, acceptance of the public of the dedication, “the frequency and number of users of a street is not significant, so long as the street remained free to those members of the public who had occasion to use it. In addition, the term ‘public’ has been interpreted to mean ‘all those who have occasion to use’ the road. Finally, a road can be a public road even if the road is only open at one end and only provides access to one landowner.” Id. at 383, quoting Chaja.
101. Historically, the public used South Madison Drive and the Public Park to access the Store.
102. In addition, South Madison Drive was accepted by the County and it is currently maintained by the County.
103. Even if a statutory dedication is not found for the Public Park and South Madison Drive, a common law dedication is supported by undisputed clear, convincing and unequivocal evidence that Frederick Stapleton intended South Madison Drive and the Public Park to be used by the general public, and it was.
104. However, in 1988, IC 8-20-1-5 required that “[a]ll county highways heretofore laid out according to law, or used as such for twenty (20) years or more, shall continue as originally located and as of their original width, respectively, until changed according to law.” McAllister, at 384, quoting Chaja, at 614. “Despite the fact that the statute was amended in 1988 to remove the language ‘for twenty (20) years or more,’ we may still hold that the public accepted a street by usage if the street was used as a public street for twenty years prior to 1988.” Id.
105. Insufficient evidence was presented to establish the date when the pier was initially installed. However, the pier, South Madison Drive and the Public Park were used by John Pence in the 1960s to access the Store from the lake. The route through the Public Park and South Madison Drive from the Store pier, in the current location of the Masts’ pier, allowed for ongoing use by patrons of the Store. This use began shortly after the Store opened on or before 1963 until its closure in 1986 or 1987. Thus, a finding is made that the areas platted as the Public Park and South Madison Drive were in continuous use for a period in excess of 20 years prior to 1988.
106. Whether by statutory or common law dedication, South Madison Drive and the Public Park were dedicated for public use.
107. South Madison Drive and the Public Park within the Lake View Addition are found to be dedicated for public use, not limited to Lake View Addition lot owners, including use by the Masts as members of the public.
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108. “To support the placement of piers or other improvements, the subject public way must make a grant of authority that is either express or implied.” Pipp v Spitler, et al, 11 CADDNAR 39, 48 (2007). The Scheibers’ reliance on the Commission’s decision in Pipp is correct. The right of the public to a public way does not, alone, include the right to place a pier along the public way.
109. “If access to a public freshwater lake is through a platted public road, an off-lake lot owner has no greater right to use the public road than any member of the general public. The easement is public and not private. Use of a public road to access the lake is a permitted use under the public easement and a non-exclusive right shared with the public. An off-lake landowner does not typically acquire the rights, even following continuous usage in excess of 20 years, to place a pier at the terminus of a public road on the shoreline of a public freshwater lake.” Lawson v. Halliwill, 13 CADDNAR 146, 152 (2013), citing Bass, at 969.
110. The Masts, as members of the public, are authorized to use the property set aside for public use. Their authorization is not a property interest in the land adjacent to the water’s edge and is not a riparian right or the authority to use the riparian rights of another.
111. While the public use rights of the Masts in the Public Park are valid, the exercise of these rights shall not interfere with the equal rights of other members of the public. “An owner in common of an easement may not alter or use the land in such a manner as to render the easement appreciably less convenient and useful for other co-owners.” Parkinson, supra, at 132, quoting Metcalf v Houk, 644 N.E. 2d 597, 601 (Ind. App. 1994). See also Claimants’ Post Trial Brief, at page 4.
112. The area that comprises the shoreline of the Public Park is limited, preventing every member of the public from extending a pier lakeward of the Public Park shoreline. Therefore, any exercise of the public use rights associated with the shoreline does not include the extension of a pier. Public use rights may be exercised for recreational purposes, as defined under IC 14-26-2-5(b), in which lakes are ordinarily used and adapted that do not interfere with the equal rights of other members of the public.
113. The Masts’ extension of their pier interferes with use of the Public Park shoreline by other members of the public.
114. The Masts’ rights as members of the public to use South Madison Drive and the Public Park do not include the right to place a pier on the shoreline of Knapp Lake within the Public Park.
Prescriptive Easement
115. The Masts assert a prescriptive easement sufficient to provide a property interest in the Lake View Addition land that is appurtenant to Knapp Lake platted as the shoreline of the Public Park.
116. If adequately demonstrated, “the dominant estate holder of a prescriptive easement may use the riparian rights of the servient tenant.” Bromelmeier v Brookhart, 570 N.E.2d 90, 91-92 (Ind. App. 1991).
117. For a party to acquire property by adverse possession, the party must establish these four elements by clear and convincing proof :
(1) Control–The claimant must exercise a degree of use and control over the parcel that is normal and customary considering the characteristics of the land (reflecting the former elements of “actual,” and in some ways “exclusive,” possession);
(2) Intent–The claimant must demonstrate intent to claim full ownership of the tract superior to the rights of all others, particularly the legal owner (reflecting the former elements of “claim of right,” “exclusive,” “hostile,” and “adverse”);
(3) Notice–The claimant's actions with respect to the land must be sufficient to give actual or constructive notice to the legal owner of the claimant's intent and exclusive control (reflecting the former “visible,” “open,” “notorious,” and in some ways the “hostile,” elements); and,
(4) Duration–the claimant must satisfy each of these elements continuously for the required period of time (reflecting the former “continuous” element).
Bass, at 965, citing Fraley v. Minger, 829 N.E.2d 476, 486 (Ind.2005).
118. The Indiana Supreme Court applied the same elements necessary to support a claim for adverse possession to a claim for a prescriptive easement. “This reformulation applies as well for establishing prescriptive easements, save for those differences required by the differences between fee interests and easements.” Wilfong v. Cessna Corp., 838 N.E.2d 403, 406 (Ind. 2005). Fraley and Wilfong were applied by the Commission in Havel & Stickelmeyer v Fisher, et al at 11 CADDNAR 110 (2007), at 121.
119. Unlike a claim for adverse possession, a prescriptive easement “use must be uninterrupted for at least twenty (20) years.” IC 32-23-1-1.
120. However, once adverse possession or a prescriptive easement is established, the rights associated with the easement are vested by operation of law. Whitman v Denzik, 882 N.E.2d 260, 264 (Ind. App. 2008).
121. A person claiming a prescriptive easement must meet stringent requirements. “Prescriptive easements are not favored by the law.” Carnahan v. Moriah Prop. Owners Ass’n, Inc., 716 N.E.2d 437, 441 (Ind. 1999).
122. “The existence or non-existence of a prescriptive easement is a question of fact.” Whitman, supra, at 264, quoting Ballard v. Harman, 737 N.E.2d 411, 418 (Ind. App. 2000).
123. On land, physical evidence can help establish adverse use, and an unexplained use of a path or road for over 20 years offers a presumption of adverse use. There is not a similar presumption for a claim to establish a prescriptive easement for recreational use of a body of water. A special showing must be made that the activities were adverse “because recreational use (especially of a body of water) is of a very different character from use of a path or road for ingress and egress over land. Recreational use (especially of water which leaves no telltale path or road) seems to us likely to be permissive in accordance with the widely held view in Indiana that if the owner of one land.” Carnahan, supra, at 442. Applied in Lawson v Halliwell, 13 CADDNAR 146, 155 (2013).
124. To support a prescriptive easement in the land appurtenant to Knapp Lake, the Masts would be required to show by clear and convincing evidence that they had established each of the four elements, properly viewed in the context of recreational waters where the use may be likely to be permissive rather than adverse.
125. The “intent” element could be demonstrated by “intent to claim full ownership of the tract superior to the rights of all others, particularly the legal owner ....” Fraley, supra, at 486. To establish the requisite control, the claimant must “exercise a degree of use and control over the parcel that is normal and customary considering the characteristics of the land ....” Id. The notice element is established if the claimant's actions with respect to the land are sufficient to give actual or constructive notice to the legal owner of the claimant's intent and exclusive control. Id.
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126. In Nodine and Snyder v McNerny, et al., 833 N.E.2d 57 (Ind. App. 2005), the Petitioners acknowledged the right of other lot owners to use specific streets to access a lake. The Court found that the recognition of the rights of other lot owners to use the disputed areas showed that there was no intention “to claim full ownership of those areas and that they were not exerting exclusive control thereof.” Id, at 66.
127. In Bass, the Indiana Court of Appeals concluded that a party seeking to establish a prescriptive easement would have had no right to enter upon an area. In that case, the [party seeking to establish a prescriptive easement] had no right to enter on a drive but for a public easement.
We do not subscribe to the Trojan Horse argument that while the [party seeking to establish a prescriptive easement was] enjoying the use of the public easement, their permissive use concealed an adverse claim to a prescriptive easement over the same area. Having used the public easement for the intended purpose, to access the lake, the [party seeking to establish a prescriptive easement] cannot demonstrate that their use was at the same time under a claim of right, exclusive, hostile, or adverse to the fee simple title of the Lot Owners. [Citation omitted.] Because the [party seeking to establish a prescriptive easement has] not shown adverse use, they have not shown an intent to use the Drive in a manner superior to the rights of all others, including the Lot Owners.
Id., at 968.
128. Similar to the situation of the parties in this case, in Plymate v Paton and DNR, 13 CADDNAR 28 (2012), a convenience store known as the Handi Spot was used by people recreating on Lake Tippecanoe. People moored boats at the Handi Spot pier traversed Park Avenue to reach the store in the 1950s and 1960s. Id at 31. However, based upon the conclusion that the public used Park Avenue, it was determined that the use by the Respondents was permissive and not adverse. Therefore, no prescriptive easement was found in that case. Id, at 34.
129. Where a person’s access to a lake is by a public street the person does not satisfy the “intent” element for a prescriptive easement. “A right shared with the public is, by definition, non-exclusive.” Bass, supra, at 970. If a use is “not adverse, the easement cannot be expanded by prescription into an exclusive easement.” Id.
130. The Masts claim no exclusive use of South Madison Drive or the Public Park. In fact, the Masts acknowledge use of South Madison Drive and the Public Park by the public as well as the owners of the Store Property to access the Store Property for over a period of over 20 years.
131. The use of the shore of Knapp Lake associated with the Public Park by the Masts is found to be permissive and not adverse. The use does not satisfy the “intent” element for a prescriptive easement.
132. The Masts “cannot demonstrate that their use was at the same time under a claim of right, exclusive, hostile, or adverse…” sufficient to prevail on their prescriptive easement claim to riparian rights associated with the shoreline of the Public Park. McAllister at 384, citing Bass.
133. The Masts have shown no property interest through a prescriptive easement. For this reason, the Masts have not acquired the right to use the riparian rights associated with the shoreline of the Public Park, including the placement of a pier through a prescriptive easement. Bass, supra.
The Masts’ Pier Placement as an Encroachment into the Scheibers’ Riparian Area
134. The Scheibers also requested administrative review for a determination on whether the John D. Mast placed a pier in the riparian area of the Scheibers.
135. It having been determined that the Masts are without authority to extend a pier from the shoreline of the Public Park, the dispute presented by the Scheibers may be determined without the need for the Commission to address this issue.[6]
136. The matters presented for Commission determination in this proceeding rests on the rights of the Masts. There is no need to reach a conclusion concerning the Scheibers’ riparian ownership or their ability to exercise riparian rights at the shoreline of Knapp Lake associated with the Public Park platted in the Lake View Addition.
137. For this reason, the
Commission finds that a determination as to the Scheibers’
riparian rights is not required to resolve this
dispute.
[1] Findings of fact that may be construed as conclusions of law and conclusions of law that may be construed as findings of fact are so deemed.
[2] Notations are provided as a reference to support testimony or exhibits in the record. The reference may not be exhaustive.
[3] Prior to the hearing it was reported to the ALJ that George Mast had passed away. No party asserted a need to join any person to address the interests of George Mast, if any, in this proceeding.
[4] This testimony was properly objected to as hearsay. In accordance with IC 4-21.5-3-26(a), the ALJ admitted the hearsay evidence. Because the testimony does not fall within a recognized exception to the hearsay rule, this decision is not based solely upon the hearsay evidence.
[5] Currently known by the parties as South Madison Drive.
[6] While the Masts questioned Scheibers’ riparian rights during the administrative hearing and in Respondent’s Post-Trial Brief, they did not file a counterclaim requiring a determination of this issue.