20-067w.v16

CADDNAR

Richcreek v. McDanial, 16 CADDNAR 9

Administrative Cause Number: 20-067W

Administrative Law Judge: Elizabeth Gamboa

Petitioner Counsel: Stephen Snyder

Respondent Counsel: pro se

Date: September 15, 2022

[Editor’s Note: Final Order follows Findings of Fact and Conclusions of Law.]

FINDINGS OF FACT AND CONCLUSIONS OF LAW WITH FINAL ORDER

Procedural Background and Jurisdiction

1. On October 30, 2020, Max Richcreek and Susan Richcreek (Richcreeks) filed a Petition for Administrative Review (Petition) with the Natural Resources Commission (Commission), against Aaron and Sherry McDaniel (McDaniels). Richcreeks raised the following issues: 1) whether McDaniels have placed a pier in the Richcreeks’ riparian area; 2) whether Richcreeks are entitled to the full use of the shoreline of their property; 3) whether McDaniels have placed a pier into the water of Webster Lake in such a way to interfere with Richcreeks’ riparian rights; and 4) whether the McDaniels possess riparian rights extending into Webster Lake. See Petition. Richcreeks requested a determination of the parties’ respective riparian rights and an order directing the McDaniels to remove any pier placed by the McDaniels in the Richcreeks’ riparian area or within the boundaries of the Public Way extending into the water of Webster Lake. See Petition, p. 3.

2. Webster Lake, located in Kosciusko County, IN, is a public freshwater lake. Ind. Code § 14-26-2-3; Ind. Code § 14-26-2-24; Listing of Public Freshwater Lakes, Information Bulletin #61 (Seventh Amendment), June 22, 2017, DIN: 20170531-IR-312170269NRA.

3. The Commission is the ultimate authority with respect to the subject matter of this proceeding. Ind. Code § 14-10-2-3; Ind. Code § 14-21.5-1-15; and 312 IAC 3-1-2.

4. The Commission has jurisdiction over the parties and the subject matter of this proceeding. I.C. § 14-26-2-(e)(3); 312 IAC 11-1-3.

5. Procedurally, this matter is governed by I.C. § 14-21.5-3 and 312 IAC 3.

6. Former Administrative Law Judge (ALJ) Dawn Wilson presided over this matter until her retirement from the Commission in December 2021. ALJ Gamboa was thereafter assigned to this matter pursuant to I.C. § 14-10-2-2.

7. Respondents were notified of the Petition by the Notice of Prehearing Conference issued November 13, 2020.

8. On November 23, 2020, Rebecca McClain, counsel for the Department of Natural Resources (Department) filed a limited appearance on behalf of the Department to monitor the proceeding and to determine whether the Department should intervene as a formal party. Notices, orders, and entries of the parties have been distributed to the Department. The Department has not filed a motion to intervene in this matter.

9. A prehearing conference was held as scheduled on December 1, 2020. A Telephonic Status Conference was held March 4, 2021, after which a case management order was issued.

10. Petitioners filed a Motion for Summary Judgment, Memorandum in Support of Motion for Summary Judgment, and Designation of Evidence on April 9, 2021. Respondents did not file a response to Petitioners’ motion.

11. An Interlocutory Order of Partial Summary Judgment (Interlocutory Order) was issued on August 10, 2021. The Interlocutory Order resolved some of the issues in this case. The Interlocutory Order is fully incorporated in this Order.

12. A Final Order of Default was issued against Sherry McDaniel on October 18, 2021, due to her failure to attend the proceedings and to respond to the Notice of Proposed Default.

13. An administrative hearing was scheduled by ALJ Wilson for January 20, 2022. The hearing date was vacated due to ALJ Wilson’s retirement in December 2021. ALJ Gamboa rescheduled the evidentiary hearing for May 13, 2022.

14. The administrative hearing occurred on May 13, 2022, at the office of the Commission’s Hearing Division at 100 N. Senate Avenue, N103, in Indianapolis.

15. The following witnesses were duly sworn and testified during the hearing:

a. Christopher McCrea, over the Teams application;

b. Chasity Sandy, over the Teams application;

c. Max Richcreek, in person

d. Aaron McDaniel, in person.

16. The following exhibits were admitted into evidence:

a. Petitioners’ Ex. A – Survey of Richcreek property;

b. Petitioners’ Ex. B – Plat of Bigler’s First Addition to Bayview;

c. Petitioners’ Ex. C – Warranty Deed;

d. Petitioners’ Ex. D – Warranty Deed

e. Petitioners’ Ex. E – Plat of Bigler’s Second Addition to Bayview;

f. Petitioners’ Ex. F through K – Arial Photographs

g. Petitioners’ Ex. M and N– Survey overlay of Richcreek Property

h. Respondent’s Ex. 1 – Kosciusko County Residential Customer Report

i. Respondent’s Ex. 2 – Warranty Deed (4 pages), admitted over Petitioner’s objections to pages 2-4 of the exhibit.

j. Respondent’s Ex. 3 – “Bigler’s 2^nd Bayview” (3 pages), admitted over Petitioner’s

objection to pages 2 and 3.

17. Petitioners filed a Post-Trial Brief with the Commission on June 13, 2022.

Findings of Fact:

18. The following relevant facts were established by summary judgment and are deemed established pursuant to the Interlocutory Order:

a. A plat for Bigler’s First Addition to Bayview (First Addition) was entered for taxation and approved by the Kosciusko County Commissioners on June 18, 1948. The plat identifies Lots 13 through 29, Lots 9A through Lot 14A, and Lots 1A to 5A. The plat identifies a “walk” between Lots 3 and 4, Lots 21 and 22 and a “walk” south of Lot 29. Each area identified as a walk appears to be approximately 10 – 15 feet wide and extends from a road to the shoreline. The original platted area was changed on the southern end of the addition to alter the lots located in the area. The change also abandoned the “walk” adjacent to Lot 29. The majority of the lots in the First Addition, including the walks, include frontage on Webster Lake.

b. A plat for Bigler’s Second Addition to Bayview (Second Addition) was entered for taxation and approved by the Kosciusko County Commissioners on October 23, 1954. The “walk” identified in the plat for the First Addition between Lot 21 and Lot 22 is identified in the Second Addition plat as a “15’ path.” The written description that appears on the plat for the Second Addition states, “Two places are shown for ingress and egress to the lake.” The plat for the Second Addition identifies Lot 22 and states, “This lot 22 is made an easement to the lake for the lot owners of this plat.”

c. The area identified as the “walk” on the plat of the First Addition and the “15’ path” on the plat of the Second Addition, is located between Lot 21 and Lot 22 of the First Addition and is hereinafter referred to as the “Walk/Path.”

d. The Richcreeks are the owners of 75 EMS W25 Ln, North Webster, IN. The Richcreeks’ property is otherwise known as Lots 12 and 14, within the Second Addition.

f. The McDaniels are the owners of 81 EMS W 25 Ln, North Webster, IN. The McDaniels’ property is also referred to as Lots 8 and 10 within the Second Addition.

g. The McDaniels’ property is north of and immediately adjacent to the Richcreeks’ property. Neither of these properties include frontage on Webster Lake.

h. The Richcreeks claim ownership of Lot 22 in Bigler’s First Addition to Bayview. However, no evidence to support the assertion was submitted for consideration.

i. No recorded deeds for the properties relevant to this proceeding have been submitted as evidence for consideration.

j. A portion of the Beacon aerial view for the relevant area, with the McDaniels’ property highlighted in blue, was submitted as Exhibit C and is copied below for the convenience of the reader. The document has been altered and labels have been added below to identify various locations.

17. Richcreeks are the owners of Lot 22 in the First Addition. See, Exhibit C; Testimony of McCrea and Max Richcreek.

18. Richcreeks hired Christopher McCrea, a surveyor licensed in the State of Indiana, to survey the Rickcreeks’ properties on Webster Lake, Lots 12 and 14 in the Second Addition and Lot 22 in the First Addition. See Testimony of McCrea.

19. In order to ensure his survey was consistent with the surrounding parcels, McCrea extended his survey one or two lots on either side of Richcreeks’ properties. McCrea’s survey therefore included the Walk/Path between Lots 21 and 22 of the Second Addition. See Testimony of McCrea.

20. In conducting the survey, McCrea set controls in his robotic data collector using GPS. See Testimony of McCrea.

21. McCrea located monuments, which he described as either rebars or pipes sometimes located “at grade or below grade,” at the corners of Lot 22 and Lot 18 to confirm his survey. See Testimony of McCrea.

22. McCrea’s survey determined the Walk/Path is 15 feet wide at the road but narrows to 1.84 feet at its terminus of Webster Lake. Due to the angle of a seawall in the area of the Walk/Path, approximately 2.15 feet of lake frontage exists at the end of the Walk/Path. See Exhibit A, Testimony of McCrea.

23. In the plats of the First Addition and Second Addition, the Walk/Path is represented as being the same, or nearly the same, width from the road to Webster Lake. See Exhibits B and E.

24. The inconsistency between the visual representation of the Walk/Path on the plats of the First and Second Additions and McCrea’s survey can be attributed to several factors. In 1948 when the plats were created, compasses and chains were used in conducting surveys. Now, GPS and robotic systems are used, which are accurate to within ¼ inch. Further, angles drawn on the plat may differ from how the angle exists in the field. McCrea also noted the plat for the First Addition was created by a surveyor who is known in the community to have committed mathematical errors in his surveys. See Testimony of McCrea.

25. McCrea’s testimony is found to be credible and accepted as establishing the facts stated in Findings of Fact 18-24.

26. Chasity Sandy is employed by the Kosciusko County Auditor’s office. Sandy’s responsibilities include parcel maintenance for the county and maintenance of the county’s “Beacon GIS Website.” She is responsible for “parcel maintenance,” property tax data, property lines and property tax rolls. See Testimony of Sandy.

27. When deeds are recorded in the county, Sandy maps out legal descriptions to verify the “GIS depiction” of a parcel and ensures the data in the Beacon system is accurate. See Testimony of Sandy.

28. The Walk/Path is not taxable because it is a “platted right of way for access and is non-taxable.” See Testimony of Sandy.

29. The primary consideration for determining the Walk/Path is a public right of way is that the area is that both the First Addition and the Second Addition plats identify the Walk/Path as a “walk.” See Testimony of Sandy.

30. Further indication is that in the First Addition plat, no lines are drawn to separate the “walk” from the road on one end and the lake on the other. This is in contrast to the lots on the plat, which show lines on all four sides. See Testimony of Sandy, Exhibit B. According to Sandy, this is an indication that the Walk/Path was intended by the developers as public access. See Testimony of Sandy, Exhibit B. The boundary lines on all sides of the Path/Walk are closed on the Second Addition plat. See Exhibit E.

31. Richcreek has seen members of the public walk on the Walk/Path to access Webster Lake and fish. He has also seen people walk out on the pier. See Testimony of Richcreek.

32. McDaniels purchased Lots 8 and 10 in 1999. See Testimony of McDaniel.

33. McDaniels have placed a pier in Webster Lake at the end of the Walk/Path for “quite a while” and have moored boats on the pier. The pier was approximately ten feet long and three feet wide. Aaron McDaniel would moor his canoe or a friend’s boat at the pier. See Testimony of Richcreek.

34. Although the circumstances are not clear from the evidence, Aaron McDaniel rented space on his pier to an individual who moored a pontoon boat on the pier. At some point, McDaniel removed the pontoon and put a bar across the pier to prevent anyone from using it. McDaniel also painted purple paint on parts of the pier.[1] See Testimony of Richcreek.

35. The pier has not been placed in the water since the Interlocutory Order was issued. See Testimony of Richcreek, Testimony of McDaniel.

36. McDaniels’ placement of the pier interfered with Richcreeks’ ability to “get in and out of” the north side of Richcreeks’ pier. See Testimony of Richcreek.

37. McDaniels claim a right to maintain a pier at the Walk/Path because the real estate listing described the home and lots he purchased as a “Charming Lake Front Access Home,” and based on “what he has been told.” See, Testimony of McDaniel, Exhibit 1. McDaniels also submitted that previous conveyances of the lots in the First Addition established he has the right to do anything he wanted on the Walk/Path. See Testimony of McDaniel, Exhibit 2.

Conclusions of Law

38. The conclusions of law as determined at summary judgment are fully incorporated herein, and the issues herein are limited by matters upon which there was insufficient evidence at summary judgment to make a determination, as set forth in the Interlocutory Order.

39. The Interlocutory Order provides in relevant part:

a. Relevant facts stated as Undisputed Findings of Fact herein within paragraphs 20-26 of this decision are deemed established.

b. It is determined on summary judgment that if the easement lakeward of the Walk/path is determined to include riparian rights, the McDaniels’ placement and exclusive control, and/or use of a pier into the water of Webster Lake lakeward of the Walk/Path is not lawful.

c. A hearing of the facts is required for matters upon which there is insufficient evidence in the record, as follows;

i. If the McDaniels have riparian rights extending into Webster Lake lakeward of the Walk/Path;

ii. If the McDaniels have placed a pier into the water of Webster Lake in such a fashion as to interfere with the Richcreeks’ riparian rights.

iii. If the McDaniels have placed piers into the Richcreeks’ riparian area.

iv. Whether Richcreeks are entitled to the full use of the shoreline of

their property.

v. If the Richcreeks are entitled to the full use of the shoreline burdened by the Walk/Path.

Interlocutory Order, pages 8 – 10.

Do the McDaniels have riparian rights extending into Webster Lake?

40. The Commission has adopted administrative rules to assist in the application of the Public Freshwater Lake Act, found at 312 IAC 11.

41. A “riparian owner” is defined in 312 IAC 11-2-19 as “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.”

42. In general, the owner of property that abuts a lake possesses certain rights associated with ownership of such a property. Bass v. Salyer, 923 N.E.2d 961, 971 (Ind. Ct. App. 2010). Those rights 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 . . ..” Parkison v. McKue, 831 N.E2d 118, 128 (Ind. Ct. App. 2005).

43. The owner of an easement, though not an owner of property abutting the lake, may hold the same legal standing to enjoy riparian rights as would the owner of the lake-front property. Brown v. Heidersbach, 360 N.E.2d 614, 620 (Ind. Ct. App. 1977).

44. The extent of the easement owner’s rights is determined by the instrument creating the easement and is limited to the purpose for which the easement was created. Id.

45. The language in the instrument creating the easement controls the terms of the easement. Abbs v. Town of Syracuse, 686 N.E.2d 928, 930 (Ind. Ct. App. 1997). Where the intended use of the easement is ambiguous, the intent of the parties creating the instrument may be determined through extrinsic evidence. Id.

46. No evidence was presented on the intent of the creators of plats or of the use to which the easement was put prior to Rickcreeks’ ownership of Lot 22.

47. ALJ Wilson previously determined the Walk/Path was dedicated to public use. See Interlocutory Order, para. 48-52. However, “[t]he intended use, including any riparian rights associated with the riparian area lakeward of the Walk/Path” was determined to be ambiguous. Interlocutory Order, para. 52.

48. “[T]he use that may be made be made of a dedicated public area must be determined from the ascertainable facts relating to its individual creation.” Frendewey & Bartuska v. Brase, 15 CADDNAR 121, 122 (2020).

49. The Second Amendment plat provides some information as to the intended use of the path. A “15’ path” is represented on the Second Amendment plat between Lots 21 and 22, in the same location as indicated in the First Amendment. The Second Amendment plat also contains the following statement: “Plat comprises 44 lots and streets as shown hereon. Dimensions are as shown. Two places are shown for ingress and egress to the lake.” The 15’ Path is one of the two places indicated for ingress and egress on the Second Addition plat. See Exhibit E.

50. Use of the phrase “ingress and egress” indicates limitation of the use of the Walk/Path to going in and coming out of Webster/Lake.

51. The size of the easement also provides indication of the easement’s intended use. The Walk/Path is depicted in the Second Amendment plat as 15 feet wide at the road and at the lake. The surveyed width of the Walk/Path, however, is 15’ at the road but is less than 2 feet wide at the shoreline.

52. A pier could not be placed in the water at the Walk/Path without interfering with rights associated with adjacent properties.

53. The Commission has previously held that the use of an easement dedicated to public use is non-exclusive. Frendewey, 15 CADDNAR at 124. Because the Walk/Path is dedicated to public use, no member of the public may exclude others from using the easement.

54. McDaniels possess a non-exclusive easement, and any rights found to exist would apply equally to all lawful users of the easement. “An owner in common of an easement may not alter or use the land in such a manner to render the easement appreciably less convenient and useful for the other co-owners. Wallace v. Stone, 14 CADDNAR 140 (2017). Even assuming the Walk/Path is 15’ wide at the shoreline, 15’ of shoreline could not accommodate the extension of a pier by every member of the public.

55. Further, “[t]he extension of a pier and the mooring of a boat to that pier establishes a proprietary control over a portion of the riparian area to the exclusion of others.” Id., citing Roberts v. Beachview Properties, LLC, et al., 10 CADDNAR 125, 140 (2005).

56. By extending a pier from the Walk/Path, McDaniels attempted to exercise proprietary control over a public easement to the exclusion of others.

57. McDaniels do not possess riparian rights to Webster Lake and placement of a pier lakeward of the Walk/Path by McDaniel is not lawful.

58. McDaniels’ rights are limited to those afforded the general rights of the public, such as for recreation or navigation. The rights of the general public do not include the placement of piers or mooring of boats. See, Information Bulletin #56.

Have the McDaniels placed a pier into the water of Webster Lake in such a fashion as to interfere with Richcreeks’ riparian rights?

59. As the Walk/Path is less than three feet wide at the shoreline, Richcreeks’ placement of a pier that is approximately three feet wide, and the mooring of a craft to the pier, would necessarily interfere with the riparian rights associated with one, or both, adjacent lot owners. See Claimants’ Post-Trial Brief, page 2. However, the evidence presented does not establish where McDaniels placed their pier in relationship to Richcreeks’ riparian area.

60. Further, as McDaniels may not place a pier on the Walk/Path, a determination of this issue is not necessary to resolve this dispute.

Have the McDaniels placed a pier into the Richcreeks riparian area?

61. The evidence shows that McDaniels’ pier was approximately three feet wide, a foot wider than the shoreline width of the Walk/Path. No evidence was presented as to the location of McDaniels’ pier as it relates to Lot 22. Therefore, no determination can be made on this issue.

Whether the Richcreeks are entitled to full use of the shoreline of their property.

62. This issue was not addressed at the hearing and therefore no determination is made in this Order.

Whether the Richcreeks are entitled to the full use of the shoreline burdened by the Walk/Path.

63. There was no evidence presented to support a finding Rickcreeks shoreline is burdened by the Walk/Path.

Final Order:

64. The McDaniels’ do not possess riparian rights at the shoreline of the Walk/Path. McDaniels’ placement of a pier in the water of Webster Lake at the end of the Walk/Path is therefore not lawful.

[1] Ind. Code § 35-43-2-2 prohibits a person who knowingly or intentionally enters the real property of another person after having been denied entry by the other person or that person’s agent.” “[P]osting the property by placing identifying purple marks on trees or posts around the area where entry is denied” is one of several ways in which entry to property is denied. I.C. 35-43-2-2(c)(4).