Mar 20 2010
In its March 17 decision on Jerry Bass et al v. Jeffrey Salyer et al, the Indiana Court of Appeals put a finer point on aspects of riparian land ownership in Indiana.
Much of the decision concerned ownership claims on other parts of the property, but it bled over into issues about riparian rights.
The case grew out of the subdivision of property in Kosciusko County on the shore of Yellow Creek Lake. Neighbor disputes developed over access to a driveway and over a pier at the property. The Salyer family owned the main property and for years had used the driveway and pier. In 2008 neighbors removed the pier, saying that was in compliance with local ordinances and the law. The Salyers sued, and were upheld at trial court.
The appeals court noted that
. . . a claimant must have a property interest in the land
appurtenant to the water before he can acquire rights to use the water. Although riparian rights arise from ownership of the land appurtenant to the water, we have also held that one may acquire a prescriptive easement in riparian rights.
In Bromelmeier v. Brookhart (1991), we held that the dominant estate holder of a prescriptive easement may use the riparian rights of the
servient tenant. In Bromelmeier, a couple owned property across the road from lots that abutted a lake. A ten-foot-wide “strip” ran between two of the lake lots. For more than twenty years, the couple used that strip to access the lake. They also installed a pier where the strip met the water. Subsequently, the lakeside lot owners on either side of the strip purchased the ten-foot-wide strip and erected a barrier across it. The couple filed suit claiming that they had established a prescriptive easement in both the ten-foot-wide strip and the lot owners? riparian rights in the lake. The trial court agreed that the couple had acquired a prescriptive easement for access to the lake, but the court found riparian rights were “unavailable to those merely holding an easement.” On appeal, the parties did not dispute the establishment of a prescriptive easement in the ten-foot-wide strip, but the couple challenged the court?s determination that an easement cannot be established in riparian rights.
We held that resolution of the issue turned on the intent of the parties when they created the easement.
. . . Having already determined that the Salyers have not established a prescriptive easement in the Drive, we must next determine whether they have established a prescriptive easement in the riparian rights to the lake.
The Court of Appeals found that they had not.
The court also noted definitionally, “Riparian rights have been traditionally associated with owners of land abutting a river or stream, while those with shoreline on a lake or pond acquired littoral rights. But the term “riparian” is now widely used to refer to both classes of ownership, id., and we use that term here.”
[see decision at the decision on line.]