CADDNAR
[CITE: Williams v. Covall et al., 15 CADDNAR 103 (2020)]
Cause #: 19-089W
Caption: Williams v. Covall and Evelyn Hornish Schlosser Revocable Living Trust
Administrative Law Judge: S. Jensen
Attorneys: J. Kuchmay for Petitioner; D. Stuckey and A Kraus for Respondents
Date: July 8, 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. The Petitioners, Gregory T. Williams and Karen Williams (collectively referred to as Williams)[1], by Counsel, Jason M. Kuchmay, filed their “Petition for Administrative Review” (Petition) with the Natural Resources Commission (Commission) on July 19, 2019.
2. The Petition, which initiated the instant proceeding, sought review of a dispute existing between Williams and the Respondents, Derold H. Covell and Nancy Covell (collectively referred to as Covell) and the Evelyn Hornish Schlosser Revocable Living Trust Dated February 27, 2009 (referred to as the Trust) regarding certain issues identified as follows:
a. Whether an easement exists with respect to a strip of land situated between the real property owned by Covell and the Trust.
b. If an easement is determined to exist, whether the easement grants riparian rights to Williams; and
c. If it is determined that Williams possesses riparian rights with respect to an identified easement, whether those riparian rights are sufficient to allow Williams to extend a pier into Clear Lake from the shoreline of the easement.
3. Clear Lake, located in Steuben 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).
6. As directed, the Commission adopted 312 Indiana Administrative Code 11-1-3, to implement Ind. Code § 14-26-2-23(e)(3).
7. Administrative review before the Commission is governed by Ind. Code § 4-21.5-3 and 312 IAC 3.
8. Administrative Law Judge (ALJ) Jensen was appointed to preside over the instant proceeding in accordance with Ind. Code § 14-10-2-2.
9. The Respondents, Covell and the Trust, were notified of Williams’ Petition through a “Notice of Prehearing Conference” issued by the Commission on July 24, 2019.
10. On July 29, 2019, the Indiana Department of Natural Resources (DNR), by Counsel, Elizabeth A. Gamboa and Ihor Boyko, filed its joint appearance for the limited purpose of monitoring the proceeding to “make a determination whether or not the DNR should intervene as a formal party…” The DNR did not seek to intervene.
11. On August 21, 2019, Counsel, Anthony L. Kraus, filed his Appearance on behalf of the Trust and Counsel, Donald J. Stuckey, filed his Appearance on behalf of Covell.
12. A Prehearing Conference was conducted on October 1, 2019[2]. During the Prehearing Conference a case management schedule was established, and a Final Status Conference and Administrative Hearing were scheduled.
13. The parties conducted discovery, filed and exchanged witness and exhibit lists, and participated in the Final Status Conference.
14. An Administrative Hearing was conducted, as scheduled, on February 25, 2020. During the Administrative Hearing, testimony was received from Gregory T. Williams (G. Williams), Tim Schaefer (Schaefer), Evelyn Hornish Schlosser (Schlosser), and Derold Covell (D. Covell). Stipulated evidentiary exhibits, identified as numbers 1 through 23, were offered jointly by the parties and admitted. Covell introduced Exhibits, identified as A, B, and C, which were also admitted by stipulation of the parties.[3]
15. Each of the parties timely filed Post-Hearing Briefs.
WILLIAMS’ REQUESTS FOR ADMISSION FROM COVELL
16. On October 4, 2019, Williams served upon Covell their “First Request for Admissions” (Admissions), providing thirty (30) days for response. The Admissions included two requests of particular note as follows:
a. REQUEST NO. 3: Admit that the Highlighted Property [Subject Property] is a platted easement.
b. REQUEST NO. 15: Admit that the Highlighted Property [Subject Property] affords riparian rights to the owners of lots in the Plat.
Exhibits 15 & 16, Williams’ Post Hearing Brief pgs. 4-5.
17. Covell responded to Williams’ Admissions on November 8, 2019. Exhibit 17.
18. Williams maintains that as a result of Covell’s failure to timely respond to the Admissions, Request No. 3 and Request No. 15 are deemed admitted by virtue of Indiana Trial Rule 36(A). Williams’ Post Hearing Brief, pg. 6.
19. Covell acknowledges that the response was provided on November 8, 2019. Covell, however, observes that Williams’ Admissions were also mailed and thereby maintains that “if the letter dated October 4, 2019, was posted on October 5, 2019, the Respondents would have thirty-three (33) days from the date of that posting to file their response, which would have been timely responded to on the 8th.” Covell’s Post Hearing Brief. Covell’s argument fails for at least two reasons.
20. First, Covell’s argument is based upon speculation. There exists no evidence that the mailed copy of the Admissions were postmarked on a date later than the email date of October 4, 2019.
21. Second, Covell’s computation of time is in error. Covell’s time computation appears to assume that the calculation of time would commence on Monday, October 7, 2019, when, in fact, the time calculation properly commenced on Sunday, October 6, 2019. The ALJ notes that only if the period of time is less than seven (7) days are the intermediate weekend days not included in the calculation. See Indiana Trial Rule 6(A), Ind. Code § 4-21.5-3-2(b). The addition of three (3) days associated with items served by mail is only compounded by the removal of weekend days from the calculation, if the time period for response is shorter than seven (7) days. This is not the situation presented.
22. With the computation of time beginning on October 6, 2019, Covell’s responses were due by November 7, 2019.
23. Williams properly asserts that in accordance with Indiana Trial Rule 36(A), “the matter is admitted unless, within a period designated in the request, not less than thirty (30) days after service thereof…the party to whom the request is directed serves upon the party requesting the admission a written answer of objection addressed to the matter…”
24. Covell maintains that because they were not advised by Williams of Williams’ intent to allege the Admissions were not timely filed and therefore deemed admitted, they were prevented from filing a motion to withdraw or amend the admissions prior to the Administrative Hearing. Covell Post Hearing Brief.
25. While “any matter admitted….is conclusively established unless the court on motion permits withdrawal or amendment of the admission”, the ALJ observes that these requested admissions do not call for Covell’s opinion with respect to the existence of an easement or Williams’ riparian rights; these requested admissions call for legal conclusions. Because the interpretation of deeds, and in this instance a plat, is a question of law, Rennaker v. Gleason, 913 N.E.2d 723, 729 (Ind. Ct. App. 2009), to determine these ultimate legal issues conclusively based upon Covell’s admissions would usurp the authority of the Commission.
26. Providing Covell an opportunity to seek the withdraw or amendment of the admissions associated with Williams’ Requests Nos. 3 and 15, is not believed to be necessary in this instance.
FINDINGS OF FACT[4]
27. At issue in this proceeding are properties situated in West Bay, the First Addition to West Bay (First Addition) and the Second Addition to West Bay (Second Addition).
28. Williams is the owner of lot 16 in the First Addition. Exhibit 7.
29. Covell is the owner of lot 1 in the First Addition. Exhibit 10.
30. The Trust owns lot 17 in the Second Addition and parts of lots 9 and 10 in West Bay. Exhibit 9.
31. To assist the reader’s understanding, the following demonstrative diagram, compiled using Exhibits 4, 5 and 6, is provided to identify the boundaries of West Bay, the First Addition, the Second Addition, the parties’ respective lot(s), and the Subject Property.
A. The First Addition to West Bay
32. The First Addition is located to the north of West Bay and consists of two rows of lots separated by a 40 foot wide platted road, identified as Owedia Drive. Lots 1 through 8, which are bounded by Clear Lake on the east and Owedia Drive on the west, run sequentially from south to north. Exhibit 4.
33. Lots 9 through 16, which are bounded by Owedia Drive on the east and the western boundary of the First Addition on the west, run sequentially from north to south. Id.
34. Owedia Drive is identified in the First Addition plat running north/south between the two rows of lots, “jogging” in an east/west direction along the southern boundary of lot 16, and then proceeding in a north/south direction along what appears as vacant land area bounded on the west side by Owedia Drive and on the east side by West Bay. Id.
35. Lot 16, owned by Williams, and lot 1, owned by Covell are located directly across Owedia Drive from one other with Covell’s lot 1 being bound by Clear Lake on the east side. Exhibits 4, 7 & 10.
36. Lying immediately adjacent to the south side of lot 1 is a strip of land identified on the plat as being 10 feet wide at its juncture with Owedia Drive and 20 feet wide at the shoreline of Clear Lake. Exhibit 4. This is the strip of land Williams identifies as an easement and will hereafter be referred to as the Subject Property. Exhibits 4 & 10.
37. The First Addition plat was established by then property owners, Wendell and Doris Day, on September 15, 1947, with the dedication of “…the platted easements to the use of the owners of lots in the named plat.” Exhibit 4.
38. The First Addition plat was accepted for recording by the “duly elected and acting trustees for the town of Clear Lake”, approved by the county surveyor, and entered for taxation on September 16, 1947. Id.
39. The plat of the First Addition references West Bay only as part of the legal description of the land included within the First Addition. Id.
40. The plat of the First Addition makes no express reference to the Second Addition. However, the legal description of the overall land area contained within the First Addition, which is written as follows, includes the entire land area later identified as the Second Addition:
A part of the west half of Section 19, township 38 north 15 east, Steuben County, Indiana, beginning at the quarter corner on the west side of section 19-38-15. Thence south on the west line of said section 19 1650 feet, thence east 621.67 feet to the true point of beginning of this description. Thence N22o 45’W 391.6 feet thence N32o W 400 feet, thence S88o 19’E 140 feet, thence N70o 50’E 189 feet, more or less, to the shore of Clear Lake, thence southeasterly along the shore of Clear Lake to the northeast corner of West Bay Plat as recorded in the plat records of Steuben County, Indiana, thence N89o 19’W 88.4 feet to the northwest corner of said West Bay Plat, thence S23o 38’E 389.5 feet along the west line of said West Bay Plat, thence N89o 19’W 186 feet to the true point of beginning.
Exhibit 4 (emphasis added).
B. West Bay
41. West Bay consists of a single row of lots numbered 1 through 10, running sequentially from south to north along the shoreline of Clear Lake. Exhibit 5.
42. The northern-most boundary of West Bay, which is also the north boundary of lot 10, is shared with the southern boundary of the First Addition, which is also the south boundary of the Subject Property. Exhibit 6.
43. An eight foot wide “street” is depicted on the West Bay plat running along the west side of the lots for the full length of West Bay. Exhibit 5. Evidence confirms that this street was subsequently vacated. Exhibit 19.
44. Lots 1 through 10 in West Bay are bounded by the shoreline of Clear Lake on the east. Exhibit 5.
45. Parts of lots 9 and 10 in West Bay are owned by the Trust. Exhibit 9.
46. West Bay was established by then owner, Clyde Smith, through the execution of a plat on April 30, 1915. Id. The plat was approved by the county surveyor on April 21, 1915, entered for taxation, and recorded on May 4th, 1915. Id.
47. The plat of West Bay makes no reference to the Subject Property or any portion of the property later platted as the First Addition or Second Addition. Id.
C. The Second Addition to West Bay
48. The Second Addition plat was established by then owners, Wendell and Doris Day, on February 9, 1954. Exhibit 6. The plat was approved by the “duly elected and acting trustees for the town of Clear Lake”, certified by the county surveyor, received for taxation, and recorded on that same date. Id.
49. The plat of the Second Addition contains no property legal description. Instead, it states that the Second Addition “…is laid out in relation to the First Addition and the Original Plat of West Bay Plat as is shown on the accompanying Plat.” In no other respect does the Second Addition plat reference West Bay.
50. The drawing associated with the Second Addition plat is one and the same with the drawing included with the First Addition except that in the area immediately west of West Bay, which on the plat of the First Addition appeared as vacant land, the drawing depicts a strip of land varying in width from 41 feet to 43.5 feet running along the west side of West Bay and the addition of seven lots numbered 17 through 23 running sequentially from the jog in Owedia Drive to the south along that strip of land. Exhibit 6, compare to Exhibit 4.
51. The plat of the Second Addition contains the exact same dedication of “the platted easements to the use of the owners in the named plat.” Exhibit 6.
52. Evidence establishes that the strip of land identified in the plat of the Second Addition lying between the Second Addition lots and West Bay was also later vacated. Exhibit 19.
53. The Trust owns lot 17 in the Second Addition, which as a result of the vacation of platted strips of land identified in the West Bay plat and the Second Addition plat, are adjoined to the parts of lots 9 and 10 in the Second Addition that are also owned by the Trust. Exhibit 6 & 9.
D. The Subject Property
54. Williams maintains that the Subject Property is an easement identified in the plat of the First Addition. Williams’s Brief, pg. 2.
55. Covell and the Trust assert no easements exists within the First or Second Addition because the plat fails to adequately identify any property subject to the dedication. Covell Brief, pg. 2, Trust Brief § 3.2.17.
56. In the alternative, the Trust avers that if the Subject Property is determined to be an easement, use of the easement is not exclusive to Williams but is shared by all of the owners of lots in the First and Second Additions. Trust Brief, § 3.1.14.
57. Because the Subject Property was initially delineated in the drawing provided in the First Addition plat, and was unchanged by the Second Addition plat, the discussion throughout this section is based predominantly, although not exclusively, upon the content of the First Addition plat, or Exhibit 4.
58. In neither the First Addition plat, nor the Second Addition plat, does the dedication set out, by express language, a legal description for the referenced “platted easements”.
59. The express language that does exist in the dedications provide some certainties.
a. First, the use of the plural form of the word “easements” establishes that the platter intended to identify more than one area of land as an easement.
b. The easements are “platted”, indicating that they are identified within the four corners of plat(s).
c. The use of the easements is restricted to the “lot owners of the named plat”, which clearly identifies lot owners as the dominant tenants.
d. The dedication, in no way, specifies the use that may be made of the easements.
60. By virtue of the fact that the platters committed the easement to use by all of the lot owners collectively, yet restricted the use of the easements to only the lot owners, it is reasonably concluded that the land areas committed to use as easements were not areas of land identified for individual ownership and were also not areas of land dedicated to common public use.
61. The First Addition plat identifies 16 lots for individual ownership that can reasonably be eliminated as potential easements.
62. The First Addition plat identifies Owedia Drive, which runs the full north/south length of the First Addition and as noted previously, also contains the land area later identified in the Second Addition plat. Owedia Drive is recognized to be the only means of ingress to and egress from the First and Second Additions from a public road located adjacent to the southernmost boundary. Exhibit 3. While there was no testimony to this effect, Owedia Drive appears to “dead-end” at the north end of the First Addition. Id. In any event, public access to the lots in both the First and Second Additions appears to be impossible but for the existence of Owedia Drive. Owedia Drive is reasonably recognized as a dedicated public road the use of which was not intended to be limited to the use of the lot owners.
63. The only remaining areas of land delineated within the plats of the First Addition or the Second Addition are the Subject Property and a strip of land located between the northernmost boundary of the First Addition and the north boundary of lot 8 that runs east-west between the shore of Clear Lake and Owedia Drive. Exhibit 4. These land areas are not identified by labeling, legal description, or in any manner in either plat. Exhibits 4 & 6.
64. Because the issues and evidence presented in the instant proceeding involve only the Subject Property and the three named parties, the findings, conclusions and determinations reached in this order are expressly restricted in application to the Subject Property and those three parties. Application of the same to the strip of land located immediately north of lot 8 in the First Addition or to other lot owners or persons is not intended.
65. The Subject Property was identified by Wendell and Doris Day when they recorded the plat of the First Addition in 1947. It is observed that the First Addition plat includes the land area that was later subdivided through Wendell and Doris Day’s recording of the plat of the Second Addition in 1954. It is reasonably concluded that if the Subject Property is identified as an easement, the dedication contained in the plat of the First Addition applies equally to the vacant land area identified in the First Addition plat that was subdivided in 1954 as identified in the plat of the Second Addition.
E. Use of the Subject Property
66. There is no statement contained within Williams’, Covell’s or the Trust’s deeds indicating the existence of easements or their rights to use easements associated with the Subject Property.
67. Before purchasing lot 16, the information available to Williams that the Subject Property was an easement that allowed their placement of a pier to moor boats included representations made in the real estate listing, representations of the real estate agent, representations made by the seller, and a survey document identifying that the Subject Property as an easement. Testimony of G. Williams and Schaefer, Exhibit 18.
68. With respect to Exhibit 18, on cross examination of G. Williams, Covell’s attorney, Donald Stuckey, questioned whether the “easement” reference on the document associated with the Subject Property was contained within the original document. G. Williams testified that he did not write the word “easement” on the document and stated that, to him, the writing appeared consistent with other writing on the document. However, G. Williams acknowledged his lack of personal knowledge regarding who wrote the word “easement” on the document. Exhibit 18’s admissibility was stipulated by the parties. No formal objection was made with respect to the accuracy or authenticity of the document. For these reasons the content of Exhibit 18 is accepted as accurate and authentic and any possible objection is deemed waived. However, the weight to be given Exhibit 18 is adjusted in light of other evidence, particularly the fact that the Subject Property is not expressly identified as an easement in any other document. See Exhibits 1, 4, & 19.
69. Ann Henry (referred to as Henry) provided testimony given through deposition on February 14, 2020 in lieu of live testimony. Exhibit 23.
70. From 1979 through 1986 Henry’s uncle and aunt owned lot 16, the lot now owned by Williams. Id.
71. Henry testified that she spent the summers with her uncle and aunt during that time and stated from personal knowledge that they used the Subject Property “as easement to the lake…” Exhibit 23, pg. 6. Henry elaborated that her uncle and aunt extended a pier straight out from the Subject Property and moored a deck boat on the north side with a sail boat and small fishing boat on the south side. Exhibit 23, pg. 7.
72. Undisputed evidence establishes that Henry’s uncle and aunt were friendly with D. Covell who owned lot 1 in the First Addition during the period from 1979 to 1986 and with the then owners of lot 10 in West Bay, which is now owned by the Trust. Id., pgs. 8-9.
73. To Henry’s knowledge no one objected to her uncle’s and aunt’s use of the Subject Property. Id.
74. Schaefer’s father purchased lot 16 from Henry’s uncle and aunt on contract in 1986 and owned the property until 2004 when it was conveyed to Schaefer. Schaefer owned lot 16 until 2017 when he sold the lot to Williams. Testimony of Schaefer.
75. Schaefer is personally knowledgeable about the use made of the Subject Property during his and his father’s ownership of Lot 16 because during that time Schaefer installed his father’s pier on the Subject Property. Testimony of Schaefer and Exhibit 22.
76. Schaefer testified that during the time of his father’s and later his ownership of lot 16 he routinely moored one boat to the pier but on occasion, if someone was visiting a second boat would be moored “for a day or two”. Schaefer testified that in 2012 to 2013 he stopped mooring boats and extending a pier from the Subject Property. While the year Schaefer stopped extending a pier from the Subject Property is somewhat uncertain, Schlosser and D. Covell generally agreed with Schaefer’s summary of his use of the Subject Property beginning in 1986 and ending between 2012 and 2014. Testimony of Schlosser.
77. Over the years, Covell has planted a tree on the Subject Property and extended their seawall five feet into the Subject Property’s 20 feet of shoreline. Testimony of Schaefer. The Trust has installed a sewage grinder on the Subject Property. Id.
78. Evidence exists to establish that the Trust’s predecessor in title, Bertha Scott (Scott), believed the Subject Property to be an easement. Exhibit 11. The content of Exhibit 11 also suggests that in 1992 Scott questioned the authority of Schaefer’s father to extend a pier into Clear Lake from the Subject Property. Id.
79. D. Covell testified that he had complained to Schaefer about his extension of a pier from the Subject Property.
80. Williams did not attempt to extend a pier from the Subject Property in 2017 but did make the attempt in 2018. Testimony of G. Williams. William’s effort in 2018 was thwarted by Schlosser, on behalf of the Trust, and Covell, who complained that Williams did not have riparian rights sufficient to extend a pier from the Subject property. Id. Williams ceased their 2018 efforts and sought the counsel of an attorney after police were called with respect to this incident. Id. Williams tried again in 2019 to extend a pier from the Subject Property and, again, were met with resistance from Covell and the Trust. Once again, police were called, and, again, Williams ceased their efforts. Id., Exhibits 12, 13 and 14. A short time later the instant proceeding was initiated. Testimony of G. Williams.
81. Williams was never told by law enforcement that they could not extend a pier from the Subject Property. Id.
82. The evidence establishes that from 1979 through the present no one has extended a pier from the shoreline of the Subject Property except the owners of lot 16. The evidence further establishes that no one has moored boats at a pier extended from the Subject Property besides the owners of lot 16 or, on occasion for a few days, a visitor of the owners of lot 16.
83. No one besides the owners of lot 16 has used the Subject Property except Covell and the Trust, who have occasionally launched watercraft from the shore. Testimony of G. Williams, Schaefer, D. Covell, Schlosser, Exhibit 23.
84. Since sometime between 2012 or 2014, when Schaefer stopped extending a pier, no pier has been extended from the Subject Property. Testimony of Schaefer and D. Covell.
85. Although the parties disagreed with respect to whether the lot owners in the Second Addition would be authorized to use the Subject Property, Williams acknowledged in testimony that the Subject Property would be available for use by each lot owner in the First Addition. Williams agreed that the Subject Property does not provide sufficient space to afford each lot owner the ability to extend a pier or moor a boat at that location. Testimony of G. Williams.
86. The evidence establishes that on the 16 platted lots within the First Addition there are currently eight residences. Testimony of G. Williams and Exhibit 2. Five of the residences are located on lots along the shoreline of Clear Lake and the owners maintain piers in front of their homes. Id. Three residences are located on the west side of Owedia Drive. Id. Currently, two homeowners having lots on the shore of Clear Lake, also own three of the lots on the west side of Owedia Drive on which they have constructed garages. Id.
87. While some of the existing residences and garages are constructed on portions of multiple lots, two owners of lots in the First Addition possess vacant lots upon which it would be possible to construct an additional residence. Id. At present, if the Subject Property is determined to be an easement, there are eight users, with the potential for there to be 16 users, from the First Addition. Id.
88. The number of individual lot owners or the actual current location of residences and structures in the Second Addition is not ascertainable from the evidence. If the Subject Property is deemed to be an easement and it is also determined that owners of lots in the Second Addition may use the easement, it must be assumed that as many as seven additional lot owners could potentially use the Subject Property.
89. D. Covell testified that the two owners of the non-lakefront lots 9, 10, 11, and 12, have used the strip of land located to the north of lot 8 to extend a pier and moor boats. As stated previously, that strip is identified in the plat in the same manner as is the Subject Property, however, that strip of land is not at issue and the owners of lots 9, 10, 11, and 12 are not parties to the instant proceeding.
CONCLUSIONS OF LAW
90. In the context of this proceeding, the Commission’s authority with respect to the parties’ riparian rights is limited to activities occurring lakeward of the shoreline. However, as necessary to fulfill its statutory obligations, the Commission possesses “authority to determine landward property rights” as well. 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). The Commission exercises restraint in exercising this authority. Id.
91. The three issues presented for Commission determination relate directly to the parties’ exercise of riparian rights lakeward of the shoreline of Clear Lake. The Commission has jurisdictional authority to determine the issues presented.
A. Does an easement exist over the Subject Property?
92. Covell and the Trust argue first that the plats of the First and Second Additions are insufficient to create an easement with respect to the Subject Property. This contention is based solely on their proposition that the plat does not clearly or definitively identify the Subject Property as an easement through labeling on the plat drawing or by legal description. D. Covell Testimony, Covell’s & the Trust’s Post Hearing Briefs.
93. To interpret an instrument containing reference to an easement, the language of the instrument must be examined to determine the intent of the creators. Kwolek v. Swickard, 944 N.E.2d 564, 571 (Ind.App.,2011). The Indiana Court of Appeals, in Kwolek, citing McCauley v. Harris, 928 N.E.2d 309, 313 (Ind.Ct.App.2010), stated,
When construing an instrument granting an easement, the trial court must ascertain and give effect to the intention of the parties, which is determined by proper construction of the language of the instrument from an examination of all the parts thereof. [W]e interpret the grant as a matter of law from the plain and ordinary meaning of the language of the grant. Particular words and phrases cannot be read alone, as the parties' intention must be gleaned from the instrument as a whole. Any doubt or uncertainty as to the construction of the language of the easement will ordinarily be construed in favor of the grantee.
Emphasis as in original.
94. The full content of the platting instruments must be considered and the consideration must “reconcile and harmonize” the entire instrument and presume an intent for every part of the instrument to have meaning. Kopetsky v. Crews, 838 N.E.2d 1118, 1124 (Ind. Ct. App. 2005). See Trust Post Hearing Brief, ¶ 3.2.2.
95. The Kopetsky decision states further,
Although Indiana law prefers that an instrument creating an express easement describe the dominant and servient tenements with reasonable certainty, an easement may be valid even though it does not use the particular terms “dominant” and “servient” in referring to the relevant estates. Our courts have recognized that the purpose of such a description in a deed “is not to identify the land but to furnish the means of identification.”
at 1125-26. (Internal citation to Larry Mayes Sales, Inc. v. HSI, LLC, 744 N.E.2d 970, 973 (Ind.Ct.App.2001) omitted.)
96. The plats of the First and Second Additions contain language dedicating multiple easement to the use of the lot owners. To conclude that no easements exist would fail to consider the instruments as a whole, would fail to give meaning to the dedication language and would fail to reconcile and harmonize the entire content of the plats, all of which is contrary to law.
97. The facts establish that the plat drawings for the First and Second Additions create lots for private ownership, establish Owedia Drive to serve as a public street, and identifies two strips of land[5] that are not otherwise labeled on the plat drawing.
98. The express language contained in the plats that dedicates multiple easements to use by the lot owners along with a plat drawing that depicts the two strips of land not identified for private ownership and not identified as a public roadway, “furnishes the means of identifying” the land subject to use by the lot owners.
99. It is reasonably concluded that the intent of the platters was to establish the two unlabeled strips of land as easements for the benefit of the lot owners.
100. This conclusion gives full meaning to the entire content of the plats of the First and the Second Additions.
B. Do the lot owners in the First and Second Additions possess riparian rights through the easement on the Subject Property?
101. Williams maintains that only the owners of lots in the First Addition were granted an easement with respect to the Subject Property. Conversely, the Trust contends that if an easement exists over the Subject Property, such easement was dedicated to use by the lot owners in both the First and Second Addition.
102. Williams maintains that the Trust, which does not own property in the First Addition, possesses no interest in the Subject Property. Based upon their belief that use of the Subject Property is limited to owners of lots in the First Addition, Williams alleges that the Trust possesses no standing to oppose their use of the Subject Property.
[VOLUME 15, PAGE 107]
103. As determined in Finding 62, the land area identified in the First Addition plat, which depicts the Subject Property, also includes the land area later subdivided through the Second Addition plat. It is concluded that the dedication of the Subject Property grants easement rights to the owners of lots in both the First and Second Addition. (From this point forward reference to “lot owners” shall be a referral to the owners of lots in the First Addition and the Second Addition.)
104. Due to the Trusts’ ownership of lot 17 in the Second Addition, Williams’ argument that the Trust possesses no interest in the Subject Property must fail.
105. Riparian rights are those rights associated with the ownership of land abutting a body of water. Dennis v. Sutton and Melendez, 14 CADDNAR 148 (2017). The exercise of riparian rights may include authority to use the water for such purposes as irrigation, to use the shoreline to launch boats, swim, and fish or engage in other similar water recreation as well as to extend a pier for mooring watercraft. Id. citing Parkison v. McCue, 831 N.E.2d 118, 128 (Ind. Ct. App., 2005).
106. 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
107. The lot owners do not hold fee title to the Subject Property and as such do not own the shoreline or the riparian rights associated with the shoreline of the Subject Property.
108. The lot owners are, however, the dominant tenants with respect to the Subject Property.
109. The lot owners, as the dominant tenants over the Subject Property, own an interest in the shoreline of the Subject Property through which they may potentially possess authority to exercise the riparian rights associated with that property. Klotz v Horn, 558 N.E.2d 1096 (Ind. 1990).
110. Any authority of the lot owners to exercise riparian rights associated with the Subject Property is controlled by the grant contained within the easement. Scheiber v. Mast, 14 CADDNAR 133 (2016), citing Klotz.
111. The dedication of the Subject Property to the use of the lot owners expresses neither a specific grant of riparian rights, nor a limitation upon the use of the riparian rights associated with that shoreline area.
112. 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. Id. A deed is ambiguous if it is susceptible to more than one interpretation and reasonably intelligent persons would honestly differ as to its meaning. Id.
113. The dedication of the Subject Property to the use of the lot owners without the expression of any particular purpose or limitation is deemed to be ambiguous.
114. Where an easement references “‘ingress and egress’ to a lake or ‘access’ to a lake” the courts have “concluded that access to a body of water is sought for a particular purpose beyond merely reaching the water, and where such purposes are not plainly indicated, a court may resort to extrinsic evidence to assist the court in ascertaining what they may have been.” Dennis, supra at 152, citing Parkison, Klotz, and Metcalf v. Houk, 644 N.E.2d 597, 601 (Ind. Ct. App., 1994).
115. Different in the instant case is the fact that the dedication of the Subject Property to use by the lot owners does not mention access to the lake, or ingress to or egress from the lake. In fact, the dedication does not mention Clear Lake in any way. However, the strips of land, the Subject Property being one, seemingly have no purpose except as a means of traveling from Owedia Drive to the shore of Clear Lake.
116. Evidence in the record describing the historic use made of the Subject Property is limited. Despite the fact that the dedication in the plats does not refer to Clear Lake in any manner, the evidence available suggests that the only use that has been made of the Subject Property has been to provide lake access.
117. The evidence establishes that previous owners of lot 16, the lot now owned by Williams, have extended piers from the shoreline of the Subject Property and have moored boats to those piers. There is no evidence to suggest that Williams’ predecessors in title sought and received approval from other lot owners to place their piers on the shoreline of the Subject Property. Evidence is available to suggest that the Trust’s predecessor in title, Bertha Scott, questioned the authority of lot owners’ to extend piers from the Subject Property. Exhibit 11. However, in more recent years, the evidence establishes that Covell did object to Schaefer’s, and now Williams’, maintenance of a pier on the shoreline of the Subject Property.
118. Covell and the Trust have also used the Subject Property for the purpose of launching watercraft from the shore.
119. The available evidence supports the conclusion that by the dedication stated in the plats of the First and Second Additions, the lot owners were granted the right to use the riparian rights associated with the Subject Property.
C. May Williams extend a personal pier from the shore of the Subject Property and moor boats at that pier?
120. Because the easement over the Subject Property was granted to all of the lot owners in the First and Second Additions, the easement is not exclusive.
121. Each of the lot owners possess equal right to use the Subject Property. A lot owner’s individual rights under the easement are not diminished because that lot owner’s property abuts the shore of Clear Lake such that the lot owner may extend a pier from his/her owned property.
122. The scope of use that may be made of an easement was discussed in Kwolek,
It is well established that easements are limited to the purpose for which they are granted. The owner of an easement, known as the dominant estate, possesses all rights necessarily incident to the enjoyment of the easement. The dominant estate holder may make repairs, improvements, or alterations that are reasonably necessary to make the grant of the easement effectual.
At 571, citing McCauley, 928 N.E.2d at 314 (citations and quotations omitted).
123. 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.Ct.App.1987) (Emphasis added) See also, Altevogt v. Brand, 963 N.E.2d 1146, 1153 (Ind.App.,2012)
124. Williams acknowledged the rights of other lot owners to use the Subject Property and expressed no intention to prohibit another lot owner from utilizing a pier extended from the Subject Property. However, the placement of a pier, in and of itself, is restrictive upon the rights of other lot owners who wish to use the shore of the Subject Property, and the mooring of a boat to that pier would establish a possessory control over a portion of the riparian area to the exclusion of other lot owners.
125. The spatial constraints associated with the Subject Property’s 20 foot shoreline dictates the conclusion that all of the lot owners would not have an equal opportunity to extend a pier from that location.
126. The evidence of record in this proceeding reveals that the piers historically extended from the shore of the Subject Property and the boats moored at those piers by Williams’ predecessors in title have interfered with Covell’s and the Trust’s ability to launch watercraft from the shore of the Subject Property in the past.
127. Further, there are more than five individual lot owners who co-own the easement over the Subject Property. The installation of a pier for the potential use by each of the lot owners would be considered a “group pier”, which is a pier intended to be used by “at least five (5) separate property owners”. 312 IAC 11-2-11.5.
128. A group pier is not a temporary structure authorized to be constructed under a general license. 312 IAC 11-3-1(b)(8)
129. The fact that the extension of a pier from the shore of the Subject Property cannot be accommodated without interference to other lot owners’ rights to use the easement and the spatial constraints render it impossible for each lot owner to use the easement equally for the extension of a pier, reasonably supports the conclusion that while the dedication of the Subject Property did convey to the lot owners the authority to use certain riparian rights, the authority of one lot owner, in this case Williams, to extend a pier from the shore of the Subject Property for the purpose of mooring boats, was not contemplated by the easement. Dennis v. Sutton and Melendez, supra at 152.
FINAL ORDER
130. The issues raised and evidence presented in this proceeding involve only the Subject Property and the three named parties. The findings, conclusions and determinations reached in this order are expressly restricted in application to the Subject Property and the named parties, as well as their heirs and assigns.
131. The Subject Property is determined to be an easement granted to the lot owners of the First and Second Additions.
132. The lot owners may exercise riparian rights associated with the shore of the Subject Property for the shore launch of watercraft as well as other water recreation, such as swimming, wading, and fishing, and water withdrawal.
133. Neither Williams, nor Covell or the Trust may exercise riparian rights associated with the Subject Property for the purpose of extending a pier for mooring watercraft.