CADDNAR
[CITE: Frendewey & Bartuska v. Brase, 15 CADDNAR 121 (2020)]
Cause #: 19-086W
Caption: Frendewey & Bartuska v. Brase
Administrative Law Judge: S. Jensen
Attorneys: S. Snyder for Petitioner; J. Grogg for Respondent
Date: September 22, 2020
[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. P. Craig and Lori Frendewey (Frendewey)[1] and Rick and Susan Bartuska (Bartuska), collectively referred to as “the Petitioners”, by Counsel, Greggory W. Hockemeyer, initiated the instant proceeding by filing correspondence, hereafter referred to as “the Petition”, with the Natural Resources Commission (Commission) on July 10, 2019.
2. The Petition sought review of a dispute regarding Respondent, Rebecca J. Brase’s (Brase), authority to extend a pier into Loon Lake from a platted strip of land situated between the properties owned by Frendewey and Bartuska.
3. Loon Lake, located in Whitley County, Indiana, is a public freshwater lake. Ind. Code § 14-26-2-3, Ind. Code § 14-26-2-24 and “Listing of Public Freshwater Lakes”, Information Bulletin # 61 (Seventh Amendment), June 22, 2017, DIN: 20170531-IR-312170269NRA.
4. The Commission is the ultimate authority with respect to the subject matter of this proceeding. Ind. Code § 4-21.5-1-15, Ind. Code § 14-10-2-3 and 312 IAC 3-1-2.
5. The Commission possesses jurisdiction over the parties and the subject matter of the instant proceeding by virtue of Ind. Code § 14-26-2-23(e)(3) and 312 IAC 11-1-3.
6. Administrative review before the Commission is governed by Ind. Code § 4-21.5-3 and 312 IAC 3.
7. Administrative Law Judge (ALJ) Jensen was appointed to preside over the instant proceeding in accordance with Ind. Code § 14-10-2-2.
8. Brase was notified of the Petition through the ALJ’s issuance of a “Notice of Prehearing Conference” on August 21, 2019[2].
9. On July 22, 2019, Counsel, Elizabeth A. Gamboa, filed her appearance on behalf of the Indiana Department of Natural Resources (DNR), for the limited purpose of monitoring the proceeding to “make a determination whether or not the DNR should intervene as a formal party…” Subsequent to that filing, the ALJ served the DNR with all issued notices, orders and entries and the parties were ordered to serve the DNR with copies of discovery requests and filed pleadings. On March 4, 2020 Ihor Boyko was substituted and on April 3, 2020 Rebecca McClain was substituted as Counsel for the DNR. At no time did the DNR seek to intervene.
10. Brase was self-represented for the Prehearing Conference conducted on September 19, 2019. The establishment of a case management schedule was deferred to allow Brase to consult with counsel. A status conference was scheduled for October 23, 2019.
11. On October 10, 2019, Counsel, Jeremy J. Grogg, filed his Appearance on behalf of Brase. On May 6, 2020, Counsel, Jared P. Baker, also entered an Appearance on behalf of Brase.
12. During the October 23, 2019 Status Conference the parties agreed that settlement appeared unlikely. A 90 day opportunity was provided to complete discovery and a subsequent Status Conference was scheduled.
13. Discovery deadlines were extended by agreement of the parties’ respective representatives and additional Status Conferences were conducted on January 29, 2020, March 25, 2020 and May 13, 2020.
14. On March 30, 2020, Mr. Hockemeyer filed his “Motion to Withdraw Appearance of Counsel”, which was granted on March 31, 2020. On March 26, 2020, Counsel, Stephen R. Snyder, entered his Appearance on behalf of the Petitioners.
15. The Petitioners’ filed their “Motion for Summary Judgment” (Petitioners’ Motion), “Memorandum in Support of Petitioners’ Motion for Summary Judgment” (Petitioners’ Memorandum), and “Petitioners’ Designation of Evidence” (Petitioners’ Evidence), on April 9, 2020.
16. On April 13, 2020, the ALJ issued notice of a briefing schedule on summary judgment.
17. On May 6, 2020, the Petitioner timely filed “Respondent’s Cross Motion for Summary Judgment” (Respondent’s Motion), “Memorandum in Opposition to Petitioners’ Motion for Summary Judgment” (Respondent’s Memorandum), Respondent’s Designation of Materials in Support of Respondent’s Cross Motion for Summary Judgment and Table of Contents” (Respondent’s Evidence), and “Designation of Genuine Issues of Material Fact” (Respondent’s Issues).
18. On June 4, 2020, the Petitioners timely filed “Petitioners’ Designation of Genuine Issues of Material Facts in Response to Respondent’s Cross Motion for Summary Judgment” (Petitioners’ Issues in Response), “Petitioners’ Designation of Evidence in Response to Respondent’s Cross Motion for Summary Judgment” (Petitioners’ Response Evidence), and Petitioners’ Memorandum in Opposition to Respondent’s Cross Motion for Summary Judgment” (Petitioners’ Response).
19. On June 17, 2020, the Respondent timely filed “Respondent’s Reply Memorandum in Opposition to Petitioners’ Motion for Summary Judgment and in Support of Respondent’s Cross Motion for Summary Judgment” (Respondent’s Reply).
FINDINGS OF FACT[3]
20. Loon Lake is a public freshwater lake. Petitioners’ Evidence, Ex. 7.
21. On June 8, 1948, the plat of the Charles H. Arnold’s Addition to Loon Lake (the Addition) was approved by the Board of County Commissioners and the same was recorded in Whitley County on June 10, 1948. Petitioners’ Evidence, Ex. 2[4].
22. On June 5, 1956, a “Re-Plat of Lot 5 and Public Way in Charles H. Arnold’s Addition to Loon Lake” (Addition Re-Plat) was recorded. The Addition Re-Plat was “made to change the location of Lot 5 therein and make it contiguous to Lot 6 instead of Lot 4 in the original plat, placing the public way to said Loon Lake now between Lots 5 and 4, instead of Lots 6 and 5 as it was in original plat and for no other purpose.” Petitioners’ Evidence, Ex. 3[5].
[VOLUME 15, PAGE 122]
23. Within the plat of the Addition, there two areas identified with the words “Public Way”. Each are represented to be 20 feet in width running in a generally north/south direction between a common road and the shoreline of Loon Lake. One of the platted Public Ways in the Addition, which is not at issue in this proceeding, is located between Lots 13 and 14. The Public Way that is the focus of this proceeding, hereafter referred to as the “Subject Property”, is depicted on the Addition’s Plat as being located between Lots 5 and 6 but is, as a result of the Addition Re-Plat, actually located between Lots 4 and 5. Petitioners’ Evidence, Exs. 2, 3 & 4.
24. This proceeding relates only to the Subject Property. The property owners of lots 13 and 14, which abut the second Public Way are not parties to this proceeding. Property owners or other persons routinely utilizing the second Public Way are not parties to this proceeding. The determinations made in this proceeding apply solely to the Subject Property. While evidence relating to the use of the public way created between lots 13 and 14 in the Addition may be discussed anecdotally for purposes of determining the dispute between the parties regarding the Subject Property, no conclusion reached in this proceeding shall be construed as determinative of any issue that may exist or that may arise in the future with respect to the second Public Way located between lots 13 and 14 in the Addition.
25. Brase observes that “there are fifteen similar Public Ways on Loon Lake, and on those fifteen Public Ways, there are 27 similar piers utilized by owners of lots not abutting the shoreline. Respondent’s Evidence, Ex. 5, ¶7.
26. As is discussed at length below, the use that may be made of a dedicated public area must be determined from the ascertainable facts relating to its individual creation. The means of creation of the remaining 14 public ways referred to by Brase is not included in the evidence.
27. The southern boundary of the Subject Property abuts the shoreline of Loon Lake. Petitioners’ Evidence, Exs. 2, 3, and 4.
28. As relevant to the instant proceeding, Frendewey is the owner of Lot 4 in the Addition. Petitioners’ Evidence, Ex. 5. The south boundary of Lot 4 abuts the shoreline of Loon Lake. ‘Petitioners’ Evidence, E. 2.
29. As relevant to the instant proceeding, Bartuska is the owner of Lot 5 as depicted in the Addition Re-Plat. Petitioners’ Evidence, Ex. 4. The south boundary of Lot 5 abuts the shoreline of Loon Lake. Petitioners’ Evidence, Ex. 2 & 4.
30. Brase is the owner of Lots 21 and 22 in the Addition. Petitioners’ Evidence, Ex. 6. Lots 21 and 22 do not abut the shoreline of Loon Lake. Petitioners’ Evidence, Ex. 2.
31. Brase’s deed does not reflect the ownership of easement or other rights to use the Subject Property. Petitioners’ Evidence, Ex. 6.
32. Brase purchased her property in 2017, from Mr. and Mrs. Albert Germann (Germann). Respondent’s Evidence, Ex.5, ¶ 2.
33. As part of the purchase of her property, she also purchased a pier from Germann. Respondent’s Evidence, Ex. 5, ¶ 3.
34. In the years prior to Brase’s purchase of the property, Germann extended the pier from the Subject Property and Brase anticipated continuing the Germann’s practice. Respondent’s Evidence, Ex. 5, ¶ 4 & 6.
35. Brase’s asserts that a “pier is necessary as the lake is very shallow immediately from the shoreline which precludes docking a boat or fishing.” Respondent’s Evidence, Ex. 5, ¶5.
36. Brase’s assertions, as set forth in Findings 32 through 35, were not disputed by the Petitioners and the same are determined to be factual.
37. The dedication recorded in conjunction with the plat of the Addition recites seven “Restrictions” not relevant to this proceeding. However, the plat offers no expressed purpose for the Subject Property, offers no insight as to the platters’ intent in creating the Subject Property and provides no expressed restriction on the use of the Subject Property. Petitioners’ Evidence, Ex. 2.
CONCLUSIONS OF LAW
I. Summary Judgment Standard
38. Summary judgment is controlled by Ind. Code § 4-21.5-3-23, which directs an ALJ to consider motion for summary judgment under Trial Rule 56of the Indiana Rules of Trial Procedure.
39. Under Trial Rule 56, a party may file a motion for summary judgment at any time after 20 days from the initiation of the action. A motion for summary judgment may be supported by affidavits.
40. The non-moving party is afforded 30 days after a motion is filed to file a response and opposing affidavits. Trial Rule 56(C).
In Reiswerg, our Indiana Supreme Court held a responding party is ‘under no obligation to raise their affirmative defenses in response to the motion for partial summary judgment’ if that motion for partial summary judgment ‘did not mention, much less negate [the] affirmative defense.’ Id. at 30. However, if the motion for summary judgment would dispose of all liability, ‘a party is required to assert affirmative defenses in response[.]’ Id. at 31. Indeed, the non-movant ‘must bring forth specific facts ... to show a genuine issue for trial.’ Abbott v. Bates, 670 N.E.2d 916, 923 (Ind. Ct. App. 1996), reh'g denied.
Siner v. Kindred Hosp. Ltd. Partnership, 51 N.E.3d 1184, 1185 (Ind., 2016)
41. “Summary judgment shall not be granted as of course because the opposing party fails to offer opposing affidavits or evidence, but the court shall make its determination from the evidentiary matter designated to the court.” Trial Rule 56(C).
42. Summary judgment shall be granted if the designated evidentiary material reveals no genuine issue of material fact and that judgment is appropriate as a matter of law. Trial Rule 56(C).
43. “A fact is ‘material’ if its resolution would affect the outcome of the case, and an issue is ‘genuine’ if a trier of fact is required to resolve the parties' differing accounts of the truth, or if the undisputed material facts support conflicting reasonable inferences.” SWL, L.L.C. v. NextGear Capital, Inc., 131 N.E. 3d 746 (Ind. App. 2019) citing Williams v. Tharp, 914 N.E.2d 756, 761 (Ind. 2009).
44. All reasonable inferences shall be drawn in favor of the non-moving party and careful scrutiny is given “to assure that the losing party is not improperly prevented from its day in court.” Siner, at 1186.
45. “A party who moves for summary judgment bears the risk that the court will enter summary judgment in favor of the non-moving party…” Quirk v. Delaware County. 91 N.E.3d 1008, 1013 (Ind. App. 2018), citing Murphy v. Curtis, 930 N.E.2d 1228 (Ind. App. 2010) trans. denied. See Trial Rule 56(B).
II. Issues Presented by the Parties
46. From the Petitioners’ perspective “the sole issue before the Commission is whether Respondent has any right to place a pier lakeward of the Public Way between Lots 4 and 5…” Petitioners’ Memorandum, pg. 2.
47. Conversely, Brase maintains as follows:
a. That the Petitioners “lack standing to challenge the use of the [Subject Property] as the [Subject Property] has not been vacated by the Town of Columbia City.
b. That “Indiana law prescribes that the platting of the [Subject Property], coupled with the ultimate location of the [Subject Property] extending to, or into, the shoreline, demonstrates that the public is entitled to enjoy the water, not just access thereto, and this may include the maintenance and use of a pier.”
Respondent’s Memorandum, pg. 2.
48. The Petitioners raised the issue of Brase’s claim to be the holder of a prescriptive easement or to have gained title to the Subject Property by adverse possession. Petitioners’ Motion. While Brase rejected the need to argue that she is the holder of a prescriptive easement or has gained title to the Subject Property by adverse possession she expressly retained the right to argue the same. Compare Respondent’s Memorandum, pgs. 1 and 5 with Respondent’s Reply, pgs. 2-3. However, Brase provided no evidence associated with any claim of prescriptive easement or adverse possession in response to the Petitioners’ argument.
III. Standing of the Petitioners
49. Brase cites Abbs v. Town of Syracuse, 686 N.E.2d 928 (Ind. App. 1997), hereafter referred to as “Abbs II”, and Abbs v. Town of Syracuse, 655 N.E.2d 114 (Ind. App. 1995), hereafter referred to as “Abbs I”, in support of her claim that because the Subject Property “exists as a public right-of-way”, the Petitioners’ have “no standing or authority to challenge or prohibit” her use of it. Respondent’s Memorandum, pg. 6.
50. Brase is correct in her conclusion that the Court, in the Abbs II decision, concluded that,
…finding that the grantors intended to include in their grant of the public rights-of-way the use and enjoyment of the riparian rights attached thereto is supported by the evidence before the trial court and reasonable inferences to be drawn therefrom. Further, that finding supports the court's declaratory judgment in favor of the Town that the Landowners are without right to regulate the riparian usage of those public rights-of-way.
At 929.
51. The Abbs I and II decisions considered a right-of-way dedication to the Town of Syracuse and the Town’s “ability to exercise riparian rights within a public freshwater lake at the shoreline where the easement terminated, including authority over the placement of piers” lakeward of the rights-of-way.
52. As was the situation in Plymate v. Paton and DNR, the matter at issue here is a private individual’s use of riparian rights associated with the Subject Property, which was dedicated to Whitley County and/or Columbia City. No municipality was made party to this proceeding and no interest that may be claimed by a municipality in the riparian rights attached to the Subject Property is adjudicated by this proceeding. 13 CADDNAR 28 (2012).
53. However, Ind. Code § 14-26-2-23(e)(3), enacted by the Indiana General Assembly in 2000 subsequent to the decisions in Abbs I and II, must be considered with respect to the Petitioners’ standing to initiate this proceeding. P.L. 64-2000.
54. “An Indiana state administrative agency has only the powers conferred on it by the Indiana General Assembly. Powers not within the legislative grant may not be assumed by the agency nor implied to exist in its powers.” Collins & Costanza v. Town of Ogden Dunes, 13 CADDNAR 269, 274 (2014) citing Bell v. State Board of Tax Commissioners, 651 N.E.2d 816, 819 (Ind. Tax Ct. 1995).
55. The Commission’s authority with respect to the parties’ claims in this instant proceeding, which focuses on the exercise of riparian rights, results from the application of Ind. Code § 14-26-2-23(e)(3) and 312 IAC 11-1-3. Plymate v. Paton and DNR, 13 CADDNAR 28, 34 (2012), citing Pipp v. Spitler, et al., 11 CADDNAR 39 (2007).
56. At Ind. Code § 14-26-2-23(e)(3), the Indiana legislature obligated the Commission to adopt administrative rules establishing a process under Ind. Code §§ 4-21.5 to mediate and resolve disputes between persons having competing interests over, along or lakeward of the shoreline of a public freshwater lake.
57. The Commission exercised the authority of Ind. Code § 14-26-2-23(e)(3) by adopting 312 IAC 11-3-1, which, in part, states;
Sec. 3. (a) A riparian owner or the department may initiate a proceeding under IC 4-21.5 and 312 IAC 3-1 to seek resolution by the commission of a dispute among riparian owners, or between a riparian owner and the department, concerning the usage of an area over, along, or within a shoreline or waterline of a public freshwater lake.
58. As relevant to this proceeding 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.
59. As necessary to fulfill its statutory obligations, the Commission possesses “authority to determine landward property rights”, however, the Commission exercises this authority with restraint. Bowman v. Walls, 14 CADDNAR 85 (2016) citing Kranz v. Meyers Subdivision Prop. Owners Ass’n, 969 N.E.2d 1068 (Ind. Ct. App., 2012).
60. A person’s use of the Subject Property that does not impact the public freshwater lake or the exercise of riparian rights is not a matter over which the Commission will exercise jurisdiction. Plymate and Bowman, supra
61. However, with respect to the exercise of riparian rights associated with the Subject Property, which abuts the shoreline of Loon Lake, a public freshwater lake, the Commission is authorized by Indiana law to exercise jurisdiction.
62. The evidence supports the factual conclusion that the Petitioners are fee title owners of land that abuts Loon Lake on opposing sides of the Subject Property.
63. By virtue of their property ownership, the Petitioners are determined to be riparian owners, who under the authority of Ind. Code § 14-26-2-23(e)(3) and 312 IAC 11-3-1, do possess standing to initiate the instant proceeding.
64. Brase is not a riparian owner by virtue of her ownership of Lots 21 and 22 in the Addition because these lots do not abut the shoreline of a public freshwater lake. However, to the extent Brase argues that she is a person possessing an interest in the Subject Property sufficient to establish in her the same legal standing as a person owning property abutting the shoreline of Loon Lake, Brase alleges that she, too, is a riparian owner possessing standing under Ind. Code § 14-26-2-23(e)(3) and 312 IAC 11-3-1 relating to the issues herein.
65. The Petitioners are also members of the public who, in the same manner as Brase, may stand to benefit from the dedication of the Subject Property to Whitley County.
IV. Riparian Rights Associated with the Subject Property
66. When the platters of the Addition presented the plat to the Whitley County Board of Commissioners for approval and caused the same to be recorded, they granted “to the municipality, in trust for the public, title to an easement …” associated with the Subject Property. Bass v. Salyers, 923 N.E.2d 961 (Ind. App. 2010) citing Poznic v. Porter County Dev. Corp., 779 N.E.2d 1185, 1192 (Ind. App. 2002).
67. The parties agree that the platters of the Addition dedicated the Subject Property to public use and in so doing created an easement in favor of the general public. Petitioners’ Memorandum and Respondent’s Memorandum.
68. As the Petitioners correctly note, the Subject Property terminates at the shoreline of Loon Lake. In the same manner that the Petitioners’ properties terminate at the shoreline and they possess riparian rights as a result, riparian rights are also attached to the Subject Property because of the fact that it terminates at the shoreline of Loon Lake. Plymate v. Paton and DNR, 13 CADDNAR 28, 2001, Egenhauf & Heckman v. Peuquet, 12 CADDNAR 295 (2011).
69. The Subject Property, abutting the shoreline of Loon Lake, is a piece of land to which riparian rights are attached. “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.” Parkison v. McCue, 831 N.E.2d 118, 127 (Ind. App. 2005).
70. However, “easements burdening land with riparian rights attached do not necessarily provide the easement holder use of these riparian rights.” Brown v. Heidersbach, 360 N.E.2d 614, 619–20 (1977).
71. In order to determine whether the easement associated with the Subject Property was intended to convey the use of the riparian rights,
…we first look to the express language of the easement. ‘An instrument creating an easement must be construed according to the intention of the parties, as ascertained from all facts and circumstances, and from an examination of all its material parts.’ Courts may resort to extrinsic evidence to ascertain the intent of the grantors creating the easement only where the language establishing the easement is ambiguous. A deed is ambiguous if it is susceptible to more than one interpretation and reasonably intelligent persons would honestly differ as to its meaning.
Parkison, supra.; citing Abbey Villas Dev. Corp. v. Site Contractors, Inc., 716 N.E.2d 91, 100 (Ind.Ct.App.1999), trans. denied. Klotz v. Horn, 558 N.E.2d 1096, 1097–98 (Ind.1990) and Gunderson v. Rondinelli, 677 N.E.2d 601, 603 (Ind.Ct.App.1997).
72. The Petitioners predominantly argue that “the owners of lots in a platted subdivision separated by a public way own the fee title to the land under the public way to the center line, subject only to the public’s right to utilize the public way.” Petitioners’ Memorandum, pg. 2.
73. The Petitioners’ contention is supported by a long line of Indiana decisions, including the decision in Abbs I, relied upon heavily by Brase, which reads, “Ordinarily, the ownership of the fee simple title to a lot abutting a street extends to the center of the street, subject only to an easement of the public for the use of the street.” Abbs I at 115; McAllister v. Sanders, 937 N.E.2d 378 (Ind. App. 2010), Dennis v. Sutton and Melendez, 14 CADDNAR 148 (2017).
74. The Petitioners acknowledge the existence of an easement over the Subject Property and recognize that their ownership interest in the Subject Property is subject to that easement. Petitioners’ Response, pg. 1. However, the Petitioners state that “riparian rights are rights resulting from the ownership of land abutting a public lake. Petitioners are the owners of the riparian rights lakeward of the terminus of the [Subject Property] between Lots 4 and 5.” Petitioners’ Memorandum, pg. 3. The Petitioners’ contention being that the dedication of the Subject Property carries with it only the right for the public to use the landward rights associated with the Subject Property, the Petitioners, who each own fee title to the centerline the Subject Property, aver that they retain full and exclusive authority to use the riparian rights attached to the Subject Property free of any easement rights of any other person.
75. Brase argues that extrinsic evidence must be considered in determining the original intent of the platters of the Addition with respect to whether the dedication of the Subject Property granted an easement for public use of only the land associated with the Subject Property or whether the dedication also granted to the public the authority to use the riparian rights attached to the Subject Property.
76. While Brase argues that consideration of extrinsic evidence is necessary, she seemingly reaches a foregone conclusion that solely because the Subject Property runs from a common road to the shore of Loon Lake, in the same manner as the streets and alleys at issue in Abbs I and II, that the “Abbs I and II cases leave no question with regard to the fact that [she] is well within her rights to construct and utilize a pier in the waters extending from the [Subject Property]. Respondent’s Memorandum, pg. 8.
77. Brase is correct in her conclusion that the Subject Property runs from a common road to the shore of Loon Lake and in this respect the Subject Property shares characteristics similar to the public streets and alleys considered by the Court of Appeals in Abbs I and II, however, that factor, alone, was not persuasive in Abbs II, and it is not, alone, convincing here.
78. At issue in Abbs I and II were streets and alleys identified in plats as rights-of-way without further explanation as to their purpose. At issue in this proceeding is the Subject Property, the dedication for which as contained within the plat of the Addition does not express the intended purpose for the creation, does not expressly state any authorized uses, and does not expressly state any limitation or restriction upon any uses. Petitioners’ Evidence, Ex. 2.
79. Under these circumstances, the Commission has, consistent with the determination in Abbs I, concluded on previous occasions that the dedication is ambiguous. Adochio, et al. v. Kranz, et al., 11 CADDNAR 400 (2008); Pipp v. Spitler, et al., 11 CADDNAR 39 (2007). Such is the case here.
80. In Abbs II there was virtually no extrinsic evidence provided in the record to establish the grantors’ intent in creating the public streets and alleys. In Abbs I, the Court of Appeals, in remanding the matter to the trial court to consider extrinsic evidence to ascertain the intended purpose and degree to which the Town of Syracuse might use the riparian rights associated with the streets and alleys, had already determined that “a street which terminates at the edge of a lake contemplates that the public will use the street to gain access to the lake. Moreover, access to water is generally sought for particular purposes beyond merely reaching the water.” Abbs I, at 116 - 117 (citing Metcalf v. Houk, 644 N.E.2d 597, 600, (Ind. App. 1994).
81. On remand, in Abbs II, the Court of Appeals made note of the trial court’s recognition that the streets and alleys were dedicated in 1837 and the trial court’s historical observations.
Using historical perspective, the grantors lived in a time when the area was undeveloped. A right-of-way is unlike the probable perception then. Certainly automobiles didn't exist and we know that waterways were a far more important means of transportation than they are now; electrical, telephone, cable TV and other wires weren't around and underground use of rights-of-way for water and sewage wouldn't have been a consideration. To them the essence of the right-of-way dedicated to public purpose would have been transportation across land to water. Access to the water would imply the right to use the water—the classic riparian right. These observations conform with the evidence of custom and usage of these locations.
Abbs II, at 931.
82. In Abbs II, the Court of Appeals determined that in light of the scant available extrinsic evidence from which the intent of the grantor could be ascertained, the trial court’s determination that the dedicated streets and alleys granted to the Town of Syracuse the ability to use and to control the use of riparian rights attached to the streets and alleys where they met the shore of Syracuse Lake, was reasonable and they declined the appellants’ invitation “to reweigh the evidence and reasonable inferences flowing therefrom in their favor, a task not within our prerogative on appeal.” Abbs II, at 932.
83. The extrinsic evidence available to support Brase’s position that the dedication of the Subject Property carries with it the authority for the general public to exercise riparian rights attached to the Subject Property is minimal, but includes the following:
a. Germann, Brase’s predecessor in title, extended a pier from the Subject Property. The record is void of evidence regarding the length of time Germann used the Subject Property in that way or the circumstances under which that use occurred.
b. The other Public Way in the Addition (located between lots 13 and 14) is used by owners of lots not abutting the shoreline of Loon Lake to extend piers. This use is consistent with the use made of the Subject Property by Germann. There is no evidence in the record providing details of that use; the evidence fails to establish the length of time that Public Way has been used in that manner or the circumstances by which that use occurs.
c. The waters at the edge of Loon Lake are very shallow such that launching a boat and fishing is precluded without the extension of a pier into the waters.
84. Brase’s observation of fourteen other rights-of-way, the means of creation of which is not in the evidence, is not worthy of great weight. As has been discussed, the use that may be made of any right-of-way must be determined by evaluating the unique facts and circumstances associated with each right-of-ways’ individual creation. That evidence is not present for consideration here.
85. There is no evidence in the record indicating what use was made of the Subject Property or the other public way in the Addition at or near 1948, when the plat of the Addition was recorded. Evidence of the use made at or near the time the platters created the Subject Property and the other public way in the Addition would offer a better indication of the platters’ intent in creating them. Such evidence would also afford the Commission the ability to consider the “custom and useage” of the Subject Property throughout history.
86. It is also observed with respect to the Subject Property that the dedication occurred in 1948, nearly 100 years later than the 1837 dedication of the streets and alleys that were at issue in Abbs I and II.
87. While neither party addresses these matters through the presentation of evidence, the Administrative Law Judge (ALJ), recognizes that unlike in 1837, in 1948 automobiles did exist and had become the primary mode of transportation. Electric and telephone lines as well as water and sewage lines did exist thereby creating a need for rights-of-way entirely unrelated to transportation or access to water. However, evidence in previous Commission cases indicates that rights-of-way similar to the Subject Property were created for use by emergency service providers, particularly firefighters accessing water for fire suppression, which would contemplate access to water. Rennaker v. Simmers, et al., 14 CADDNAR 66, 69 (2016). As was noted in Parkison, supra, access to the waters of a lake for domestic purposes and irrigation is also included as a riparian right, which was an issue before the Commission in Holland v. Phillips, 14 CADDNAR 29 (2015). The ALJ also recognizes that boats in use in 1948 were typically not of the size or type in use at the present time.
88. “Usually, easements arise to fill some need or serve some purpose.” Newforth v. Bault, 120 N.E.3d 594, (Ind. App. 2019) citing Howard v. United States, 964 N.E.2d 779, 781 (Ind. 2012), and Klotz v. Horn, 558 N.E.2d 1096, 1099-1100 (Ind. 1990).
89. In Klotz, the court distinguished Brown, supra, through a consideration of the need associated with the easement. The court observed that in Brown, the easement addressed a need to provide access to a beach, and, as such, concluded that the easement did not convey to the easement holders the authority to use the riparian rights associated with the easement. However, the facts in Klotz established that the easement served no need except to reach the water’s edge, where the lake was “very mucky and weedy and not suitable for wading, swimming, fishing or boating.” At 1099. In Klotz, the court reasoned;
Installation of a pier, while not necessary for the enjoyment of the plaintiffs' lakeside easement in Brown, seems more than reasonable based on the record before us in the instant case, as it would certainly facilitate the Klotzes' access to Eagle Lake.
Id.
90. The fact that little evidence exists upon which to ascertain the intended purpose of the Subject Property presents a challenge in this instance. However, it is reasonably concluded, as has been concluded by the Commission, and by untold numbers of Courts throughout history, that such a right-of-way, which leads from a common road to the water’s edge, and provides no other apparent purpose, intends some access to the waters of the lake.
91. Brase asserts that launching a boat and fishing is precluded at the water’s edge associated with the Subject Property because the water is shallow. It is inferred from the assertion by Brase, that she is attempting to establish, consistent with Klotz, that the extension of a pier is necessary to facilitate the use of the easement rights conveyed by the dedication of the Subject Property. This proposition is not convincing.
92. While launching a motor boat of any kind may not be possible without a pier, it cannot be reasonably accepted that shallow waters would preclude the launching of a canoe or a row-boat, which are boats of a type and size more commonly in use in 1948. In fact, shallow waters might reasonably be preferred for launching those types of watercraft, as well as for wading, for swimming or for other recreational pursuits. Similarly, one might reasonably conclude that access to the waters of Loon Lake by emergency personnel and for domestic purposes, such as irrigation, would be well served by the shallow waters on the shoreline of Loon Lake.
93. It is so concluded that the dedication of the Subject Property establishing an easement in favor of the public carries with it the authority for public use of the riparian rights attached to the Subject Property. However, the scope of the easement and special limitations must dictate how the easement may be used. Pearson v. Department of Natural Resources and Gator, 7 CADDNAR 137 (1996); Dennis v. Sutton and Melendez, 14 CADDNAR 148, 152 (2017).
V. Dominant Estate Owners’ Extension of a Pier and Mooring of a Boat Lakeward of the Subject Property
94. Because the Subject Property was dedicated to the general public, the easement created is non-exclusive.
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95. The respective authorities and responsibilities of an easement’s dominant tenant, in this case the general public, including Brase and the Petitioners, and the servient tenant, in this case, arguably, the Petitioners, was stated appropriately as follows:
The dominant estate holder may make repairs, improvements, or alterations that are reasonably necessary to make the grant of the easement effectual. Id. 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. Id. “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.” Id. 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.” Id. 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.
McCauley v. Harris, 928 N.E.2d 309, 314 (Ind. App. 2010), citing Klotz at 1100, See also Kwolek v. Swickard, 944 N.E.2d 564, 571 (Ind. App. 2011).
96. While a dominant tenant may make improvements necessary to the use of an easement, when the rights under an easement are co-owned, each owner of the dominant estate must be respectful to each of the other dominant tenants.
[c]o-owners of easements possess the rights to construct, alter or improve the easement or exercise their rights in any way to perpetuate their enjoyment of the easement, as long as their actions do not interfere with their co-owners' rights to enjoy the easement.
Maxwell v. Hahn, 508 N.E.2d 555, 558 (Ind. App. 1987) (Emphasis added) See also, Altevogt v. Brand, 963 N.E.2d 1146, 1153 (Ind. App. 2012)
97. The 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. Roberts v. Beachview Properties, LLC, et al., 10 CADDNAR 125, 140 (2005). This type of use, anticipated by Brase, is restrictive upon the rights of the servient tenants and other dominant tenants who wish to exercise their rights to use the Subject Property.
98. Consider, Dennis, supra, in which the spatial constraints associated with an easement consisting of 25 feet of shoreline that could not accommodate the extension of a pier by
every dominant tenant, which included every member of the public. The Commission concluded that “it is, therefore, unreasonable to conclude that the …dedication of the disputed parcel to the public contemplated the extension of piers by the public.” At 152.
99. The spatial constraints associated with the Subject Property’s 20 foot shoreline dictate the conclusion that Brase, Frendewey and Bartuska, as a co-owners of the dominant estate with other members of the general public, may not, exercise a proprietary control over the Subject Property, to the exclusion of the other dominant estate owners. See also Williams v. Covell and the Evelyn Hornish Schlosser Revocable Living Trust Dated February 27, 2009, Administrative Cause 19-089W (Final Order issued July 8, 2020).
VI. The Petitioners’ Exercise of Riparian Rights Associated with their Purported Ownership of the Fee Title to the Centerline of the Subject Property
100. With respect to the Petitioners’ exercise of riparian rights associated with the Subject Property, a very similar fact situation was considered in Dennis, supra.
101. In Dennis, the Commission concluded:
Even if the Petitioners are riparian owners by virtue of fee title ownership to the centerline of the disputed parcel, they would be the owners of the servient estate while the general public is the owner of the dominant estate as granted by the Whites’ dedication. Rehl v. Billetz, 963 N.E.2d 1 (Ind. Ct. App., 2012) as cited in Skilbred, et al. v. Ward, et al., 13 CADDNAR 125 (2013).
Even as riparian owners of a portion of the disputed parcel, the authority of the Petitioners to exercise those riparian rights is subordinate to the superior rights of the general public to use the disputed parcel in accordance with the dedication. Therefore, the Petitioners may not interfere with the rights granted to the general public to access Sechrist Lake for recreational purposes. Id.
The extension of a pier from the shoreline and the mooring of boats lakeward of the disputed parcel by either the Petitioners, as riparian owners or as members of the public, … cannot be accomplished without interfering with the public’s rights to use the disputed parcel[11] for launching and landing watercraft, fishing, swimming, wading and other traditional recreational pursuits.
At 152.
102. A similar conclusion is appropriate under the facts of the instant proceeding.
103. The Petitioners, arguably as owners of the fee title to the center line of the Subject Property, are the servient estate owners who may not exercise a proprietary control over the Subject Property, thereby interfering with the general public’s exercise of their rights in the easement.
VII. Brase as a Potential Holder of a Prescriptive Easement or Title by Adverse Possession
104. As was noted in Finding 48, Brase on one hand rejected the opportunity to argue the she is the holder of a prescriptive easement over the subject property or has acquired title to the Subject Property by adverse possession, but also indicated a retained right to so argue, if necessary.
105. In the context of the instant proceeding a claim of prescriptive easement or adverse possession would properly be identified as an affirmative defense;
‘depends upon whether it controverts an element of a plaintiff's prima facie case or raises matters outside the scope of the prima facie case.’ Paint Shuttle, 733 N.E.2d at 524 (citing Molargik v. W. Enter., Inc., 605 N.E.2d 1197, 1199 (Ind. App.1993)). An affirmative defense is a defense ‘upon which the proponent bears the burden of proof and which, in effect, admits the essential allegations of the complaint but asserts additional matter barring relief.’ Paint Shuttle, 733 N.E.2d at 524 (quoting Rice v. Grant County Bd. of Comm'rs,472 N.E.2d 213, 214 (Ind.Ct.App.1984), trans. denied ).
Willis v. Westerfield, 839 N.E.2d 1179 (Ind. 2006), Haggarty v. Anonymous Party 1, 948 N.E.2d 286, 291 (Ind. App. 2013),
106. The Petitioners raised these issues in the Petitioners’ Motion and consequently, Brase is obligated to assert any affirmative defenses and must “bring forth specific facts ... to show a genuine issue for trial.” Siner v. Kindred Hosp. Ltd. Partnership, 51 N.E.3d 1184, 1185 (Ind., 2016), citing Abbott v. Bates, 670 N.E.2d 916, 923 (Ind. Ct. App. 1996), reh'g denied. See also Ind. Code § 4-21.5-3-14(c).
107. To acquire title to real property by adverse possession, a person must establish by clear and convincing proof, four elements:
(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).
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.
Scheiber v. Mast, 14 CADDNAR 133, 138 (2016)
108. It is well settled that “a permissive use cannot be adverse so as to ripen into an easement by prescription.” Bass at 969, citing Brown at 621. See also Dennis, Plymate, and Bull v. Trimmer, et al., 14 CADDNAR 10 (2015).
109. Because the evidence is undisputed that the easement over the Subject Property was dedicated to the general public, any use of the easement by Brase or any of her predecessors in title would have been permissive such that proof of the necessary control, intent, notice and duration, by clear and convincing evidence is not possible.
FINAL ORDER
110. The issues raised and evidence presented in this proceeding are expressly restricted in application to the Subject Property and the parties to the instant proceeding, as well as their heirs and assigns.
111. The Subject Property is determined to be an easement granted to the general public, which includes a grant to the general public to the use of the riparian rights attached to the Subject Property by virtue of its abutment to the shoreline of Loon Lake.
112. The exercise of riparian rights by Bartuska, Frendewey, or Brase, or their respective successors, heirs and assigns shall not include the extension of a pier or mooring of boats in the waters lakeward of the Subject Property or any other use that interferes with the reasonable use of the riparian rights possessed by the general public, which may include such activities as launching small boats from the shore, wading, swimming, or obtaining water for domestic use.
[1] For simplicity the singular tense is used throughout.
[2] A Notice of Prehearing Conference that was initially issued on July 17, 2019 could not be served upon Brase at the address originally provided by the Petitioners. The Petitioners provided a different address for Brase, at which service of a subsequently issued Notice of Prehearing Conference was achieved.
[3] A Finding of Fact more appropriately construed as a Conclusion of Law or a Conclusion of Law more appropriate considered a Finding of Fact shall so be considered.
[4] The same document is provided as Respondent’s Evidence, Ex. 1.
[5] The same document is provided as Respondent’s Evidence, Ex. 2.