CADDNAR
Bruick & Burchhardt v. Ohio Consumer Credit, LLC, et al. (21-002W), 16 CADDNAR 26
Administrative Cause Number: 21-002W
Administrative Law Judge: Aaron W. K. Bonar
Petitioner Counsel: William Gooden & Michael P. Maxwell, Jr.
Respondent Counsel: Douglass Johnston & Tyler Rotstein
Date: November 15, 2023
[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 January 26, 2021, Randall G. Bruick, Wendy R. Bruick, and Steven J. Burchardt (hereinafter Petitioners) filed correspondence (hereinafter Petition) with the Natural Resources Commission (hereinafter Commission) requesting that the Commission determine what, if any, riparian rights have been granted to Petitioners through their deeded right to an easement over Respondents Ohio Consumer Credit Alliance, INC.’s and Richard J. Roebel’s properties. See Petition.
2. Petitioners seek a determination from the Commission clearly stating that they have riparian rights granted to them through the easement and a nearly continuous placement of a pier into Snow Lake. Id.
3. By filing their Petition, Petitioners initiated a proceeding governed by Indiana Code 4-21.5-3, sometimes referred to as the Administrative Orders and Procedures Act (AOPA) and the administrative rules adopted by the Commission at 312 IAC 3-1 to assist with the implementation of AOPA. See IC 4-21.5-3-1, et seq.
4. Administrative Law Judge (ALJ) Sandra Jensen was appointed under IC 14-10-2-2 to conduct this proceeding and was assigned this case on February 1, 2021.
5. A telephonic prehearing conference was set for February 24, 2021. Notice was provided to the parties via a Notice of Prehearing Conference dated February 2, 2021.
6. Petitioners filed a Verified Amended Petition to Determine Riparian Rights on February 5, 2021 stating that Respondent Roebel’s address was incorrect on the prior petition. ALJ Jensen reset the telephonic prehearing conference for March 10, 2021.
7. At the March 10, 2021 prehearing conference, the parties agreed to continue the prehearing conference to April 26, 2021. During the April 26, 2021 prehearing conference, Petitioners indicated that at least five (5) other deeds with the same easement language existed and argued that those property owners should be added to this action. Respondents stated that they may seek a quiet title action in the appropriate county court. The parties agreed to set a telephonic status conference for August 4, 2021.
8. On May 5, 2021, Petitioners submitted a Notice of Other Potentially Interested Persons and Request to Join and Serve Said Persons with Notice of This Proceeding. The Notice identified the following persons as the persons to be joined: Walter B. Mercer, Walter R. Mercer, Phyllis J. Mercer, Clifford Lindblom, William L. Goddard, Wayne E. Krass, and Anne E. Yott Krass. The request to join the parties was granted by an order dated May 7, 2021.
9. At the August 4, 2021 status conference, the parties agreed to continue the status conference because some parties failed to appear at the conference and a motion to dismiss the quiet title action in Steuben County court was pending. The parties agreed to set a telephonic status conference for October 6, 2021. That conference was vacated after ALJ Jensen reassigned this matter to ALJ Dawn Wilson on September 24, 2021.
10. It is unclear from the record if a telephonic conference took place on October 6, 2021. On October 18, 2021, ALJ Wilson issued an Order for Status Reports due no later than November 12, 2021. After only Petitioners filed a status report on November 12, 2021, ALJ Wilson set a telephonic status conference for January 27, 2022.
11. On December 7, 2021, ALJ Wilson notified the parties that she was retiring from the ALJ position effective December 31, 2021 and that the January 27, 2022 status conference was vacated.
12. On or before April 25, 2022, this case was reassigned to ALJ Elizabeth Gamboa. ALJ Gamboa ordered the parties to submit a status report and two potential dates for a future status conference no later than May 13, 2022. On May 10, 2022, Petitioners submitted a status report notifying the ALJ that the quiet title action in Steuben County Superior Court had been stayed and proposed two dates for a status conference. No other party filed a status report by May 13, 2022.
13. ALJ Gamboa set a telephonic status conference for June 7, 2022. This case was reassigned to ALJ Aaron Bonar on June 2, 2022. The June 7, 2022 telephonic conference remained set. At the June 7, 2022 status conference, the parties agreed to set a hearing for January 11 and 12, 2023.
14. On August 29, 2022, Respondents filed a motion to continue the hearing. ALJ Bonar continued the hearing and set a telephonic status conference for September 26, 2022. At the September 26, 2022 telephonic conference, the parties agreed to hold the hearing on February 23 and 24, 2023. By agreement of the parties at an informal telephonic conference, the hearing was continued to May 23 and 24, 2023.
15. The administrative hearing took place on May 23, 2023.[1] At the hearing, Petitioners, Counsel for Petitioners William Gooden and Michael Maxwell, Respondents, and Counsel for Respondents Douglass Johnston and Tyler Rotstein appeared in person at the Commission Hearing Room at the Indiana Government Center in Indianapolis, Indiana.
16. The following witnesses provided testimony at the administrative hearing: Randall Bruick, Walter R. Mercer, Steven Burchardt, Patti Couperthwaite, Richard Roebel, and Timothy Smith.
17. The parties stipulated to the admission of all exhibits. Petitioners’ exhibits A through SS were admitted into the record as were Respondents’ exhibits 1-72.
18. Petitioners were given until June 23, 2023 to file post-hearing briefs. Petitioners and Respondents filed post-hearing briefs on June 23, 2023.
Findings of Fact
19. Petitioner Bruicks (Bruicks) own real property described as Black Oak Grove 1st Addition, Lot 20, commonly known as 155 Ln 820 B Snow Lake, Fremont, IN 46737. Bruicks also own a section of Lot 19. The properties are not lakefront properties. See testimony of Randall Bruick.
20. Petitioner Burchardt (Burchardt) owns real property described as Black Oak Grove 1st Addition, Lot 18, commonly known as 195 Ln 820 B Snow Lake, Fremont, IN 46737. The property is not a lakefront property. See testimony of Steven Burchardt.
21. Respondent Roebel (Roebel) owns real property described as Black Oak Grove Lot 3, commonly known as 220 Ln 820 B Snow Lake, Fremont, IN 46737. The property is immediately adjacent to and abuts Snow Lake. See testimony of Richard Roebel.
22. Respondent Ohio Consumer Credit Alliance, INC. (OCCA) owns real property described as Black Oak Grove Lot 2 Subject to Easement, commonly known as 200 Ln 820 B Snow Lake, Fremont, IN 46737. The property is immediately adjacent to and abuts Snow Lake. See testimony of Tim Smith.
23. Respondents Mercers (Mercers) own real property described as Black Oak Grove 1st Addition, Lot 16. No common address was given for this property. Mercers had previously owned Lot 2, now owned by OCCA. See testimony of Walter R. Mercer.
24. Collectively, Petitioners and Mercers own lots 16 through 20 of Black Oak Grove. None of the properties are lakefront properties and each burden OCCA’s Lot 2 with an easement granting “privileges of ingress and egress to and from Snow Lake across the south ten (10) feet of Lot Number Two (2)” of Black Oak Grove. This language is similar across all deeds. A composite of the Black Oak Grove plat is below. See Exhibits 1-19 and Exhibits A, C, and H.
25. The parties do not contest the existence of the easement. See totality of the record.
26. Mercers have owned Lot 16 since 1983 and owned Lot 2 from 1974 to 2018, when they sold Lot 2 to OCCA. Walter R. Mercer (W. Mercer) testified that a pier, including moored fishing boats, existed on the easement used by lots 16-20 “when [he] was little,” or a young child, but also testified that he did not recall a dock placed by any party on the easement between 1978 and 1994. See testimony of W. Mercer and Tim Smith; see Exhibit 7.
27. W. Mercer testified that Mercers obtained a prescriptive easement which included the right to place a pier into Snow Lake through their use of the easement until selling Lot 2 to OCCA in 2018 as well as through ownership of Lot 16 since 1983. See testimony of W. Mercer.
28. Conversely, Richard Roebel testified that he has lived on his property, Lot 3, since 1970. He gave conflicting, confusing testimony regarding whether a pier had been placed on the easement property from 1954 to 1979 or later. The ALJ finds that, while the testimony is not necessarily non-credible, it is internally contradictory and thus unreliable. See testimony of Richard Roebel.
29. Bruicks and Burchardt testified that they have maintained a pier continuously on the easement property since at least 1994. Bruicks purchased Lot 20 in 1994 and claim that they have exercised de facto riparian rights, including placing a pier into Snow Lake, for nearly 30 years as evidenced by photographs submitted into the record. See testimony of Randall Bruick and Exhibits M-P, R-T, W-Z, BB-DD, and FF.
30. Burchardt’s alleged riparian rights essentially come from the belief that Mercers obtained prescriptive riparian rights through their previous ownership of Burchardt’s property (Lot 18), which then passed to Burchardt given that the deed to Lot 18 contains the easement language. See testimony of Steven Burchardt.
31. When buying Lot 2 from Mercers in 2018, OCCA, through Tim Smith, consulted with realtor Patti Couperwaithe. Couperwaithe testified that she discussed the easement with OCCA, stating that it was a “walking easement,” meaning that the easement over Lot 2 was to be used for ingress and egress from Snow Lake and that, to her understanding, the easement language did not grant lots 16-20 riparian rights through their use of the easements. See testimony of Patti Couperthwaite and Tim Smith and Exhibits 32-33.
32. Couperthwaite also testified that she had discussed the “walking easement” with Mercers, advising them to change or clarify the easement language prior to selling Lot 2 to OCCA. Couperthwaite testified that Mercers understood that the easement allowed for ingress and egress (entry and exit) to Snow Lake only without granting, for example, the right to place a pier on the easement property into Snow Lake or additional riparian rights. See testimony of Patti Couperthwaite.
33. OCCA purchased Lot 2 with the understanding that the easement granted to lots 16-20 was a “walking easement.” However, a pier used by Bruicks and Burchardts was extended from the easement. OCCA’s attorney at the time wrote to Tim Smith stating that there may be some riparian rights associated with a continuous pier placement by “a back lot owner,” meaning an owner of at least one lot of lots 16-20. See testimony of Tim Smith and Exhibit F (specifically the portion of Exhibit F labeled “Exhibit C”).
34. A watercraft identified as Burchardt’s pontoon was moored to the Bruick/Burchardt pier and was extended into OCCA’s riparian zone associated with Lot 2. OCCA, through their attorney, sent a letter to Burchardt stating that OCCA had no issue with the pontoon floating into OCCA’s riparian zone if no additional watercraft were moored at the pier and/or as long as no other back lot owners shared the pier. OCCA sent the letter in part to assert their riparian rights to Burchardt. Id.
35. On or near August 31, 2020, Bruicks attached their jet ski to the Bruick/Burchardt shared pier. OCCA reversed its position through a letter from their attorney, stating that they would not allow Burchardt’s pontoon to drift into their riparian zone and stating that they would start charging storage fees for each watercraft moored to the pier. Id.
36. Further letters to Bruicks and Burchardt asserted that the easement was a “walking easement” and that, without the approval of a riparian owner, Bruicks and Burchardts could not place a temporary structure, such as a pier, onto Snow Lake from the easement property. Id.
37. OCCA’s post-trial brief also asserts that a prescriptive easement does not exist because, after Brucks purchased Lot 20, Bruicks and Mercers “became friends.” Thus, any placement by Bruicks of a pier on the easement property was permissive, or done with the knowledge of Mercers, and thus not eligible to gain prescriptive riparian rights through other mechanisms such as adverse possession. See Respondent’s post-trial brief, paragraph 36.
38. OCCA moved their pier in April 2021 toward the riparian line that divides OCCA’s riparian zone from the easement. OCCA claims that the Bruick/Burchardt pier interferes with their ability to use and enjoy their riparian zone given the nearness of the piers. See testimony of Tim Smith and Exhibit F (specifically the section labeled “Exhibit A”).
Conclusions of Law
39. Snow Lake is a Public Freshwater Lake located in Steuben County, Indiana. Information Bulletin # 61 Listing of Public Freshwater Lakes (Eighth Amendment), DIN 2021020-IR-312210447NRA (IB61).
40. IC 14-26-2-5, also known as the Lake Preservation Act, provides that the State “has full power and control of all the public freshwater lakes in Indiana … [and] hold and controls all public freshwater lakes in trust for the use of all of the citizens of Indiana for recreational purposes.” See IC 14-26-2-5(d)(1-2).
41. The Commission has jurisdiction over public freshwater lakes and has the power to make administrative rules to implement relevant sections of the Indiana Code. See IC 14-10-2, 14-15-7-3, 14-26-2-23, and 4-22-2.
42. A “riparian owner” is “the owner of land, or the owner of an interest in land sufficient to establish the same legal standing as the owner of land, bound by a lake.” 312 IAC 11-2-19.
43. In general, the owner of property that abuts a lake possesses certain rights associated with ownership of that 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).
44. An owner of property that does not abut a lake may acquire a prescriptive easement for the riparian rights described above over property that does border that lake. Bass v. Salyer at 971. If there exists an easement that does not grant riparian rights to the dominant estate, prescriptive riparian rights may vest for the dominant estate if certain requirements are met. Whether these requirements are met is a question of fact. Downing v. Owens, 809 N.E.2d 444, 452 (Ind. Ct. App. 2004), trans. denied; Capps v. Abbott, 897 N.E.2d 984, 988 (Ind. Ct. App. 2008).
45. As the parties do not contest the existence of the easement or the rights it grants for ingress and egress to Snow Lake, this dispute revolves around exactly what riparian rights and areas, if any, have been granted to Petitioners and Mercers through the vesting of prescriptive riparian rights.
46. Petitioners and Mercers claimed that they had acquired prescriptive riparian rights by continuous use of the easement to place and maintain a pier for at least 30 years (if not more, counting Mercers’ previous ownership of Lot 2 and continued use of the easement). Petitioners and Mercers essentially claimed that they had acquired a prescriptive easement granting them riparian rights through adverse possession.[2]
47. Prescriptive easements are not favored in the law. Carnahan v. Moriah Prop. Owners Ass'n., Inc., 716 N.E.2d 437, 441 (Ind.1999). For that reason, “the party claiming [a prescriptive easement] must meet ‘stringent requirements.’” Id.
48. The Indiana Supreme Court reformulated the requirements for adverse possession in Indiana. Parties claiming adverse possession of property must show by clear and convincing evidence the following elements:
1. control over the parcel of land in dispute;
2. intent to claim ownership of the parcel;
3. sufficient notice to the legal owner of the parcel of the party’s control and use of the land; and
4. control of the parcel for a sufficient duration.[3]
Fraley v. Minger, 829 N.E.2d 476, 486 (Ind. 2005). Each element is discussed below.
49. On its face, Petitioners’ and Mercers’ arguments satisfy element 2. Bruicks, Burchardt, and Mercers clearly intended to, and did at various times, use both the easement over Lot 2 and the riparian area associated with the easement to place a pier into Snow Lake. This administrative action is an obvious manifestation of that intent.
50. Likewise, element 4 is mostly satisfied by Petitioners’ arguments, at least as it relates to Bruicks and Mercers. Bruicks’ testimony that they maintained a pier in the easement’s riparian area since at least 1994 was not successfully refuted. Bruicks have not displayed an intent to abandon the easement. They have therefore exercised control for well over the required twenty years.
51. Mercers similarly claimed that they installed piers and moored boats in the easement area well before 1994. However, the evidence is not sufficient to show when the Mercers installed the pier and moored boats.
52. Satisfying elements 1 and 3, however, prove difficult for Petitioners and Mercers. Regarding control over the easement property, though the easement may have had a pier of some sort attached to it since the 1920s, or at least since 1994, there is no clear evidence that Bruicks and/or Burchardt exclusively and continuously controlled the easement’s riparian area since 1994. Burchardt appeared to use Bruicks’ pier off-and-on over time and Mercer may have known about the placement of the pier prior to 2018, limiting their ability to claim control over the easement area.
53. Bruicks have a stronger claim to control of the easement area and riparian zone, but this claim falters when subjected to element 3. It was suggested by Respondents that Mercers knew of Bruicks’ use of the easement area to install a pier and may have approved of it.
54. If Mercers knew of the placement of the pier by Bruicks as alleged by Respondents, the use would be permissive. “A use which is merely permissive or which is exercised under a mere license cannot ripen into [a prescriptive] easement.” Fleck v. Hann, 658 N.E.2d 125, 128 (Ind.App., 1995).
55. The ALJ reasonably infers that Mercers, as the previous owners of Lot 2, knew of Bruicks’ pier and allowed it to remain on the easement property from 1994 to 2018. At best, this shows permissive use of the easement’s riparian area. It is unlikely that Mercers were given notice of or believed that Bruicks desired to exclusively control the riparian area by maintaining a pier in the easement riparian zone. Merely using the area claimed through adverse possession has been found by Indiana courts and the Commission to be insufficient to satisfy the notice requirements of element 3. See Wawa, LLC. v. E. Mark Deister, 16 CADDNAR 2 (2021).
56. Similarly, OCCA, as evidenced by the letters from OCCA’s attorney to Petitioners, was aware of the Bruick/Burchardt pier’s existence since purchasing Lot 2 in 2018. Although OCCA was unaware of any previous piers or riparian uses of the easement area by Petitioners and Mercers, the letters clearly show that OCCA did not recognize a prescriptive easement and states that OCCA would permit Burchardt to moor his pontoon boat if certain conditions are met, including that no other back lot owners would moor watercraft at the pier.
57. Finally, in the deed granting Lot 20 the easement over Lot 2, the deed clearly states that the right “to use the south ten feet of lot number two ... for access to and from Snow Lake (in common with others) is hereby granted.” See Exhibit 25. This language indicates that the easement was intended to be a non-exclusive easement shared with other lots who had rights to use the easement.
58. Given the narrowness of the easement, the ALJ reasonably infers that the easement was not created with the intent to grant all dominant lots the right to build and maintain piers on the easement property, but to allow the easement holders a reasonable path through which they would be granted access to Snow Lake.
59. Petitioners do not satisfy the control and notice elements of the reformulation of adverse possession found in Fraley and thus do not have a prescriptive easement granting riparian rights within the boundaries of the easement. Petitioners and Mercers do not have a prescriptive right to place and maintain a pier and/or to moor watercraft within the boundaries of the easement burdening Lot 2. The pier and any moored watercraft must be removed from the easement to allow all dominant easement estates free access to Snow Lake.
60. The ALJ further orders that Respondents may not interfere with Petitioner's proper use of the easement.
61. The ALJ and Commission cannot make a finding of whether the easement is still valid, an argument proffered by Respondents, due to various property transfers overall given the limited jurisdiction of the Commission concerning the determination of specific landward property rights. See Bowman v. Walls, 14 CADDNAR 85 (2016).
FINAL ORDER
62. The easement burdening OCCA’s Lot 2 may be used for ingress and egress (entry into and exit from) to Snow Lake by Lots 16-20 (Petitioners and Mercers).
63. Petitioners did not properly establish adverse possession and thus do not possess a prescriptive easement with riparian rights burdening Lot 2.
64. Therefore, the owners of Lots 16-20 do not have the right to place a temporary structure into Snow Lake. Their rights are only those of access to Snow Lake.
65. Respondents shall not obstruct access to Snow Lake by the owners of Lots 16-20 by their proper use of the easement.