Long Beach Community Alliance's Brief opposing Gunderson assertion of beach ownership

8/9/2019 Long Beach Community Alliance's Brief opposing Gunderson assertion of beach ownership

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STATE OF INDIANA ) IN THE LAPORTE SUPERIOR COURT NO. 2) SS:

COUNTY OF LAPORTE )

CAUSE NO. 46D02-1404-PL-0606

DON H. GUNDERSON and BOBBIE J. )GUNDERSON, CO-TRUSTEES OF THE )

DON H.GUNDERSON LIVING TRUST, )Dated November 14, 2006 )

)Plaintiffs )

)v. )

)STATE OF INDIANA AND INDIANA )

DEPARTMENT OF NATURAL RESOURCES )

Defendant

AND

ALLIANCE FOR THE GREAT LAKES and SAVETHE DUNES and LONG BEACH COMMUNITY

ALLIANCE ET AL

Defendant-Intervenors

RESPONSE BRIEF OF

DEFENDANT-INERVENORS

LONG BEACH COMMUNITY ALLIANCE,

PATRICK CANNON, JOHN WALL, DORIA LEMAY,

MICHAEL SALMON AND THOMAS KING


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I. INTRODUCTION

The Plaintiff in this case, Don H. Gunderson and Bobbie J Gunderson, Co-Trustees of the Don

H. Gunderson Living Trust (Gunderson), claims it owns real property stretching from Lake Shore

Drive all the way down to the waters edge of Lake Michigan, wherever that may be at any time.

Gunderson is wrong both legally and factually. Not only are Gundersons facts and interpretations

disputed, they are disputed by a body of law and evidence, including government documents. This

evidence both defeats Gundersons Motion for Summary Judgment and Gundersons case as a whole.

Gunderson rests its Motion for Summary Judgment and its entire case on a deed that on its face

has no dimensions and a Map of Long Beach that on its face that has no dimensions. Gunderson

admits this, but argues that in the absence of any dimensional description of the Lots, the Court should

assume the northern boundary of its Lots extend to the waters edge of Lake Michigan, wherever that

may be at any time.

LBCA disputes Gundersons interpretation of those documents and designates evidence

establishing that: 1) the northern boundary of the Gunderson Lots is not unknown or unknowable, 2)

that boundary likely coincides with, and at least extends no further than, the northern Section Line of

Section 15 in which the Lots are located, 3) the northern Section Line of Section 15 was established in

the original 1829 Federal Land Survey and perpetuated in the Federal Land Patent for the land from

which the Long Beach Addition and Gundersons Warranty Deed are derived, and 4) the location of that

Section line can be located based on notes in the 1829 Federal Land Survey and it is above the ordinary

high water mark (OHWM) of Lake Michigan.


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Further evidence designated by LBCA, including LaPorte County tax records and Gundersons

own real estate listing, shows that Gunderson itself has admitted that its Lots have a depth of only 150

feet.

The only additional factual evidence designated by Gunderson is certain 1984 Stop surveys

pertaining to public beach access properties owned by the Town of Long Beach.1 Evidence designated

by LBCA demonstrates that Gunderson misconstrues those Stop surveys and that they do not support

its contention that it owns land stretching from Lake Shore Drive to waters edge of Lake Michigan.

The only facts Gunderson has designated are squarely disputed both legally and factually.

Therefore, Gunderson has failed to carry its burden to present undisputed evidence of its title and its

Motion for Summary Judgment must be denied.

LBCA, herewith, also submits a Cross Motion for Summary Judgment and herein provides a

Argument in support thereof and designates evidence in support thereof. LBCAs Cross Motion moves

the Court to render Summary Judgment in favor of the Defendant and the Defendant- Intervenors based

on the Equal Footings Doctrine and the Public Trust Doctrine and finding that the State of Indiana owns

the lakebed of Lake Michigan up to its OHWM and the State holds that lakebed in an inalienable trust

for the public for all normal and customary beach uses, including recreation. Should the Court find in

favor of Plaintiff on the question of ownership of the land in dispute, LBCA, in the alternative moves the

Court to render Summary Judgment in its favor finding that Long Beach Residents and members of the

public have established a prescriptive easement over the disputed beach area under Indiana law.

The definition of OHWM is established by regulation in Indiana ( 312 IAC 1-1-26) and by a

body of state and federal common law, LBCA has designated photographic and historic evidence,

!Gunderson also designates as evidence certain webpages and minutes of meetings of state

agencies, a provision of the Indiana Code, and the Order of Judge Alevizos in anotherproceeding. These are not factual evidence of Gundersons title to the land in question, the

material fact which Gunderson must prove.


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including government tax maps and U.S. Corps of Engineers emergency plans to protect the Long

Beach shoreline, which show the true southern reach of the Lake Michigan lakebed. This evidence

shows the significant impact even a few feet of change in Lake Michigans recorded levels can have on

the size, contours and elevation of the beaches bordering the Town of Long Beach, how far up the beach

the Lake water has stood in recent history, and the impact of high water levels on properties built north

of Lake Shore Drive in the lakebed. This evidence underscores the practical significance of the natural

OHWM in this region given the unique storm surges and constantly shifting beach formations that occur

within the lakebed at the southern tip of Lake Michigan.

Finally, affidavits provided by Long Beach residents and LBCA Members demonstrate the long

and broad historic public use of the unique beaches bordering the Town of Beach. These affidavits

establish the nature and scope of the publics right to use these beaches under the Public Trust Doctrine.

In the alternative, should the Court find that Gunderson owns beach property down to the low water

mark at any given time, these affidavits also state facts which support a finding that Long Beach

residents have established a Prescriptive Easement for their broad scope of open, adverse and historic

use of the Lake Michigan beach lake-ward of the Gunderson house and other lake-side houses.

II. DESIGNATED EVIDENCE PRECLUDING SUMMARY JUDGMENT FOR

PLAINTIFFS AND SUPORTING SUMMARY JUDGMENT FOR DEFENDANTS

Pursuant to Indiana Trial Rule 56(C), LBCA designates the following twenty-two (22)

exhibits as evidence supporting both its Response to Gundersons Motion for Summary Judgment and

supporting LBCAs Cross-Motion for Summary Judgment in favor of the State of Indiana and the

Defendant- Intervenors, including LBCAs arguments, in the alternative, for Summary Judgment in

favor of LBCA on its prescriptive easement claims.

1. LBCA Exhibit 1 - 1914 Plat of Long Beach (Map of Long Beach) (includingenlargement of narrative language in Plat); (Also see Plaintiffs Exhibit 1.b.)


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2. LBCA Exhibit 2 - 1829 Federal Survey of Sections 14, 15, and 22 (including, Section 15

in which the Gunderson Lots are located)

3. LBCA Exhibit 3- Pages from Surveyors Notes, 1829 Federal Survey of Sections 14, 15,

and 22.

4. LBCA Exhibit 4 - 1837 U.S. Land Patent to William W. Taylor

5. LBCA Exhibit 5 U.S. Dept. of the Interior, Bureau of Land Management General

Office Records- Patent Details for 7/5/1837 State Volume Patent to William W. Taylor

6. LBCA Exhibit 6 - 2003 GIS Photo Shown for La Porte County and Affidavit ofAnthony Hendricks

7. LBCA Exhibit 7 La Porte County Tax Assessor Records for Gunderson Lots

8. LBCA Exhibit 8 - Real Estate Advertisement for 2021 Lake Shore Drive, Long Beach

Indiana

9. LBCA Exhibit 9 - Photo of Survey Stake in Dune Grass on lake-side of Gunderson Lot

10. LBCA Exhibit 10 Indiana Attorney Generals Opinion, Nov. 22, 1978

11. LBCA Exhibit 11 Indiana Department of Natural Resources Quasi-DeclaratoryJudgment, May 30, 2000.

12. LBCA Exhibit 12 (A) Photo of Beach and Lake - Summer 2014

LBCA Exhibit 12 (B) Photo of Beach and Lake - Fall 2014

13. LBCA Exhibit 13 Indiana Tax Assessors Map (revised 1993) Depicting Certain

Lakeshore Drive Lots in Section 15, Including Gunderson Lots

14. LBCA Exhibit 14 - Long Beach, Indiana Emergency Bank Protection Vicinity,Locality and General Plan, U.S. Army Engineer District Corps of Engineers, Chicago,

Illinois, Sept. 10, 1973

15. LBCA Exhibit 15 - Photographs of High and Low Water in Vicinity of Gunderson Lots,Including Historic 1929-1930 Photos

16. LBCA Exhibit 16 A - Affidavit of Patrick Cannon (with 2 Photos)

LBCA Exhibit 16 B- Affidavit of Thomas King

LBCA Exhibit 16 C Affidavit of Affidavit of Joy M. Schmitt


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LBCA Exhibit 16 D - Affidavit of Jeff Bartlett

LBCA Exhibit 16 E - Affidavit of William N. Powers

LBCA Exhibit 16 F - Affidavit of Karen Silhavy

LBCA Exhibit 16 G - Affidavit of Jo Ellen Pilecki

LBCA Exhibit 16 H - Affidavit of Margaret O. Allison

LBCA Exhibit 16 I - Affidavit of Joseph and Lenore Jogmen

LBCA Exhibit 16 J - Affidavit of Jane Neulieb

LBCA Exhibit 16 K - Affidavit of James Neulieb

LBCA Exhibit 16 L - Affidavit of Carol Lombard

LBCA Exhibit 16 M - Affidavit of David Hoppe

17. LBCA Exhibit 17 - Photo of Summer Day at the Beach Depicting Scope of Use

18. LBCA Exhibit 18 A Examples of South Shore Line Posters Advertising Indiana

Beaches in the 1920s.

LBCA Exhibit 18 B Moonlight in Duneland: Marketing the South Shore Line in the

1920s, Stephen G. McShane.

19. LBCA Exhibit 19 A Historic Poster Advertising Long Beach As a Resort Community

LBCA Exhibit 19 B Indiana Tourism Bureau Poster Advertising Long Beach

20. LBCA Exhibit 20 - Photo of Typical Stop Stairway to Beach

21. LBCA Exhibit 21 - Photo of Town of Long Beach Posted Beach Rules

22. LBCA Exhibit 22 - Town of Long Beach 2009 Comprehensive Plan

Further specification of the relevant portions of these exhibits, to the extent necessary, is

provided in the Argument Section below.

III. STANDARD OF REVIEW FOR SUMMARY JUDGMENT


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Pursuant to Indiana Trial Rule 56(C), Summary Judgment is granted only when "designated

evidentiary matter shows that there is no genuine issue as to any material fact and that the moving party

is entitled to judgment as a matter of law." Interstate Cold Storaage, Inc. v. General Motors

Corporation, 720 N.E.2d 727 (Ind. Ct. App. 1999)

It is the party moving for summary judgment that bears the burden of making a prima facie

showing that there is no genuine dispute as to any material fact and that he or she is entitled to

judgment as a matter of law. Monroe Guar. Ins. Co. v. Magwerks Corp., 829 N.E.2d 968, 975 (Ind

2005). To make a prima facie showing, the moving party must specifically designate evidence

supporting its position. Even if the moving party designates undisputed evidence supporting its

position, summary judgment is not appropriate where the record reveals an incorrect application of the

law to the facts. Interstate Cold Storage, p. 730. Only if the moving party meets both of these

requirements does the burden shift to the non-movant to set forth specifically designated facts showing

that there is a genuine issue for trial.Interstate Cold Storage, at p. 727

A genuine issue of material fact exists where facts concerning an issue which would dispose of

the litigation are in dispute or where the undisputed material facts are capable of supporting conflicting

inferences on such an issue. U-Haul Intl, Inc. v. Nulls Mach. and Mfg. Shop, 736 N.E.2d 271, 274

(Ind. Ct. App. 2000) On a Motion for Summary Judgment, all evidence is to be construed and all doubts

are to be resolved in favor of the non-moving party.

U-Haul Intl, Inc., at p.274.

Under Ind. Trial Rule 56(B), when one party has moved for summary judgment, the court

may grant summary judgment for any other party on the issues raised by the motion.

IV. ARGUMENT


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A. GUNDERSON HAS FAILED TO MAKE APRIMA FACIECASE THAT IT

OWNS THE LAND IN DISPUTE.

1. ON ITS FACE, GUNDERSONS DEED DOES NOT CONVEY

OWNERSHIP TO THE WATERS EDGE WHEREVER THAT MAY BE.

As a threshold matter in this quiet title action, Gunderson must prove that it holds title to the

property in dispute. Gunderson claims it owns property all the way down to the waters edge of Lake

Michigan, wherever that may be at any time. Therefore, Gunderson bears the burden of proving it holds

title and that that title extends to property all the way to the waters edge, wherever that may be at any

time. In support of its position, Gunderson has designated the following as itsprima facieevidence of

title to the land in dispute:

1. A Warranty Deed (Plaintiffs Exhibit 1-A) [which does not state

dimensions of the property conveyed, but rather references Lots 240, 242and 244 and 245 of the Long Beach Addition, as shown in the 1914 Map

of Long Beach recorded in the Office of the Recorder of LaPorte County];

2. The 1914 Map of Long Beach [ referred to by Gunderson as the LongBeach Addition Plat or Plat] (LBCA Exhibit 1; Plaintiffs Exhibit 1-B);

and

3. A series of Stop surveys prepared by Charles D. Hendricks for the Townof Long Beach, including a survey of Stop 22 adjacent to Gunderson Lot

244. (Plaintiffs Exhibit 3 and 3-A).

Gunderson contends that The lots north of the road known as Lake Shore Drive in the Plat have

no northern dimension depicted on the Plat (Plaintiffs Exhibit 1 Complaint, page 2, para. 10) But,

in fact they do. Contrary to Gundersons contention, the Map of Long Beach shows the lots to be

rectangles with four-sides. Further, the Warranty Deed by way of the 1914 Map of Long Beach, to

which it refers, does provide the northern boundary of the Long Beach Addition and all lake-side lots in

the subdivision. The narrative description of the Long Beach subdivision which appears on the face of

1914 Map of Long Beach states that the property shown in the Map is located in Sections 14, 15 and 22


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of (LBCA Exhibit 1; Plaintiffs Exhibit 1-B)Therefore, it is axiomatic that no property falling

outside those Sections is within the Long Beach Addition or was conveyed to any lot purchaser.

As Gunderson states, the court should follow the rules of deed construction in this case. (See

Gunderson Motion for Summary Judgment, p. 5) In doing so, the narrative description of the Long

Beach Addition stated on the face of the Map of Long Beach -- the key piece of evidence of the extent

of Gundersons title-- cannot be ignored. That description of the property is clear and simple it is

located in Section 14, 15, and 22. As Gunderson argues, citingParkinson v. McCue,831 N.E.2d 118,

128, (ind. Ct. App. 2005): The object of deed interpretation is to identify and implement the intent of

the parties to the transaction as expressed in the plain language of the deed and such language should

be read in the ordinary and popular sense and a court presumes that the parties intended for every

part of a [document] to have some meaning and we favor a construction that reconciles and harmonizes

the entire [document]. (Gunderson Memorandum of Law in Support of Motion for Declaratory

Summary Judgment, p. 5.)

The Gunderson Lots are located on the northern extreme of the Long Beach Addition and the

northern extreme of Section15. Their north boundary may actually coincide with the north Section Line

of Section 15, but, minimally, the north Section Line of Section 15 is the outer limit of the property

platted by the original subdivision developer and of the title conveyed by Gundersons Warranty Deed.

Further, as is discussed below, where that Section Line is located is well known and readily reproducible

based on survey posts and survey data used by surveyors today and for more than a century.

The northern extreme of Section 15 was established by the original 1829 U.S. Land Survey

which surveyed the boundaries of the State of Indiana. (LBCA Exhibit 2). That original survey also

established the Range, Township, and Sections within the State. That survey shows the dimensions of


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the boundaries of Section 15 in chains and rods. Starting from a southeast corner post, which still

remains in place and is used by surveyors today, those dimensions can be used to calculate the total

acreage surveyed in Section 15 (which totals 127.55 acres) and to locate the Section Lines and the

northern limit of the Gunderson Lots today. The northern boundary was surveyed along the bank of

Lake Michigan. (LBCA Exhibit 3)

A 1837 U.S. Land Patent granted the same 127.55 acres a very specific quantum of land -- in

Section 15 to the original title owner, William W. Taylor. (LBCA Exhibit 4) On its face, the Patent

refers to 127.55 acres within Section 15. The deeds to all Lots depicted in the Map of Long Beach derive

their title from that original Federal Land Survey and this original U.S. Land Patent and therefore

conveyed only property located within those 127.55 acres in Section 15.

A 2003 GIS Photo/ Survey Overlay created by Anthony Hendricks in his capacity as the LaPorte

County Surveyor shows the Section Lines established by the 1829 Survey super-imposed over an aerial

photograph of Sections 14, 15 and 22. (LBCA Exhibit 6 ) As stated in Mr. Hendricks supporting

affidavit ( LBCA Exhibit 5), this Photo/Survey was designed to generally show where the Section Lines

run through the now developed Lots. From this Photo/Survey, it can be seen that Lots lake-ward of Lake

Shore Drive, including the Gunderson Lots, have been developed on property that is lake-ward of the

northern Section lines.In other words, the development exceeds the boundaries of the property

conveyed under the original patent and the Map of Long Beach, from which the Gunderson Warranty

Deed derives, and encroaches on property of the adjacent land owner the State of Indiana.

2. THE STOP SURVEYS ARE NOT EVIDENCE THAT GUNDERSONS

LOTS EXTEND TO THE WATERS EDGE WHEREVER IT MAY BE AT

ANY MOMENT


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Gunderson relies on certain 1984 surveys (Plaintiffs Exhibit 3) performed by Charles D.

Hendricks2for the Town of Long Beach as evidence that the Town-owned beach access lots and

adjacent lots have a depth that extends to the waters edge wherever that may be at any moment.

Gunderson Memorandum of Law in Support of Motion for Declaratory Summary Judgment, p. 2.

As an initial matter, Gunderson has provided no evidence that this survey was performed to

delineate the depth of these lots. On its face, these surveys were not intended to do so. They state NO

DIMENSIONS SHOULD BE ASSUMED BY SCALE MEASURMENTS UPON THIS PLAT.

Indeed, no measurements of the depth of the lots are provided. On its face, it appears these surveys were

performed to delineate the location of the access points and any encroachments thereon. In any event,

there is no indication that Charles Hendricks was hired to survey the entire lot or examined title

documents or original 1829 survey from which the Towns title, like Gundersons derived. Accordingly,

Judge Alevizos, in Gunderson et. al v. Town of Long Beach, No. 46C01-1212-PL-1941 (Dec.26, 2013)

(Plaintiffs Exhibit 9-A) found that these same surveys do not delineate the northern boundary of the

[plaintiffs] lots.

Further, Gundersons argument rests on the assumption that the use of term Lake Edge was

intended by the surveyor to mean the location of the water at the moment of the survey or any given

moment in time. But Gunderson has provided no affidavit from the surveyor to support this

interpretation. As such, the term Lake Edge, as used by Charles Hendricks is ambiguous. It could

mean the location of the water on the days of the survey, but it could also mean the OHWM, as defined

by elevation or by physical characteristics observed on the beach. See Wright v. Day, 33 Wis. 260, 264

(Wis. 1983) (equating the terms waters edge and high water mark); Glass v. Goeckel, 703 N.W.2d

2 Charles Hendricks is the father of the current La Porte County Surveyor Anthony Hendricks, whose affidavit is

designated in evidence as LBCA Exhibit 5. Charles Hendricks was the County Serveyor in the 1980s; however,

Charles Hendricks also ran a private surveying company and Gunderson has offered no evidence that the 1984

Stop surveys on which Gunderson relies were created by Charles Hendricks in his capacity as County Surveyor.


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58, 76 (Mich. 2005) (references in other states to waters edge often tie that term to either a high or

low water mark); Matteson v. Batchelder, 32 A.3d 1059, 1064 (Me.2011) (the term shoreline

may refer to either the high-wawter mark or the low-water mark).

Moreover, it is not the job of a surveyor to render a legal opinion on the Towns or anyone elses

title to property and these surveys should not be construed as such.

3. GUNDERSON HAS ADMITTED THAT IT OWNS NO MORE THAN 150

FEET NORTH OF LAKESHORE DRIVE AND HAS FAILED TO PAY

PROPERTY TAXES ON PROPERTY BEYOND THAT POINT.

Gunderson has acknowledged that its lots have only a 150 foot depth by virtue of only paying

LaPorte County property taxes on Lots of a 150 foot depth. (LBCA Exhibit 7) Furthermore,in 2014,

Gunderson publicly held out in advertisements for the sale of its Lots that those Lots are only 150 feet

deep. ( LBCA Exhibit 8)As can be seen in a photo taken by Patrick Cannon in 2014, a surveyors pink-

flagged stake on the Gunderson property, located approximately 150 feet north of Lake Shore Drive is

located in the dune grass behind the Gunderson house on Lot 245 far from the current waters edge of

Lake Michigan. (LBCA Exhibit 9)

By these actions, Gunderson has openly admitted and publicly held out that it does not own and

has no right to convey to any third party any land more than 150 feet north of Lake Shore Drive.

Whether Gunderson actually owns property that extends as far as 150 feet from Lake Shore Drive may

challengeable based on the evidence of the actual location of the northern property line of the land

conveyed under its Warranty Deed and evidence of the natural OHWM; but, furthermore, Gundersons

claim in this case that it owns to the waters edge wherever it may be at any time is undermined by its

own contradictory statements and actions.

These admissions are highly relevant. In State v. Kivett, 228 Ind. 623, 95 N.E.2d 145, 148-149

(Ind. 1950), Kivett owned land adjacent to the White River, a navigable water, and claimed a right to


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mine sand, gravel, stone and other minerals and substances from the river bed. The Indiana Supreme

Court held that the State of Indiana acquired title to the lakebed upon becoming a state and could not

part with title except by an act of the Legislature. In ruling for the State, the court also found it salient

that Kivett, who had a federal patent for adjacent land, had never received a patent for any of the lands

forming the bed of the White River, and never was assessed, and never paid any taxes upon such land.

Id.at p. 149

4. AS A MATTER OF LAW, THE FEDERAL LAND PATENT COUND NOT

CONVEY LAND BELOW THE OHWM

As a legal matter, the Federal Land Patent from which Gundersons Warranty Deed derives

could not have conveyed land below the OHWM after Indiana became a state in 1816. The U.S.

Supreme Court in Pollards Lessee, 3 How.212, 11 L.Ed. 565 (1845) ruled on the issue was whether a

federal patent issued after the admission of Alabama to the Union could validly convey lands that had

underlain navigable waters upon Alabamas admission. The Court held: the States title to lands

underlying navigable waters within its boundaries is conferred not by Congress but by the Constitution

itself and, therefore, if the patent purported to convey lands which were part of the tidelands, the

patent would be invalid to that extent since the Federal Government has no power to convey lands which

are rightfully the States under the equal footing doctrine.

Later, in Shively v. Bowlby, 152 U.S. 1 (1894), the Supreme Court made it clear that the federal

government could only patent land above the ordinary high-water mark. Referring to the Oregon

Donation Act, the Court stated:

Grants by Congress of portions of the public lands within a territory to settlersthereon, though bordering on or bounded by navigable waters, convey, of their

own force, no title or right below high-water mark, and do not impair the title anddominion of the future state, when created . . . . Id. at 58. [emphasis added]


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Thus, based on Pollards Lessee and Shively alone even without considering the survey

evidence -- it is clear that the 1837 Federal Land Patent from which Gundersons Warranty Deed derives

did not and could not have conveyed any land below the OHWM of Lake Michigan because the federal

government had no authority to do so.

B. UNDER THE EQUAL FOOTINGS DOCTRINE THE STATE OF

INDIANA OWNS THE LAKEBED OF LAKE MICHIGAN TO THE

ORDINARY HIGH WATER MARK.

Gundersons three astonishingly broad claims in this case -- that it owns the lakebed whenever it

isnt covered by water, it has exclusive right to use the lakebed beach, and the state has no jurisdiction to

regulate its use -- all fly in the face of long and well-established legal principals and should be

dismissed as a matter of law.

1. THE STATE OWNS AND HOLDS THE LAKEBED OF LAKE

MICHIGAN IN TRUST FOR THE PUBLIC.

Gunderson argues that an Indiana statute articulating public rights as to inland lakes (IC 14-26-2-

1) does not apply to Lake Michigan and therefore no public trust attaches to the beaches of Lake

Michigan. Gunderson Memorandum of Law in Support of Motion for Declaratory Summary Judgment,

p. 14. This argument reveals a fundamental misunderstanding of the relationship between the laws of the

state and federal governments as to navigable waters and the soils beneath them. The public trust which

attaches to the lakebed of Lake Michigan was initially established by federal common law and since

then has been incorporated in state common law as well as state and federal statutes and regulations.

While the state can define the scope and contours of the public trust, it cannot extinguish it particularly

not, as Gunderson contends, by simply excluding it from coverage under a statute intended to address

inland lakes which are not covered under the federal Public Trust Doctrine. SeePPL Montana, LLC v.


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Montana,132 S. Ct. 1215, 1235 (holding the State takes title to the navigable waters and their beds in

trust for the public and no state can make up its own rule for determining navigability for title that

would enlarge what actually passed to the State, at the time of her admission to the Union.); Corvallis

Sand & Gravel, 429 U.S. at 376.(holding the initial boundaries of equal footing riverbeds and lakebeds

and the existence of the public trust imprint, are to be uniformly decided under federal law.)

The historic English common law and subsequent American common law concept that the

federal government first, and then the states, as they became a part of the union,

hold the lakebed of navigable waters and do so, not for their own use or purposes, but in an inalienable

public trust is based on the historic vital interest of the public in these waters and their lakebed. The

leading annunciation of the federal Public Trust Doctrine to this day isIllinois Central Rail. Co. State of

Illinois et al.,146 U.S. 387, 13 S.Ct. 110(1892), in which the U.S. Supreme Court eloquently described

the vital public interest in the navigable waters of Lake Michigan and its lakebed and ferociously

defended the inalienable and paramount nature of the publics right to use those resources against

actions taken by a major corporation, the City of Chicago and the Illinois General Assembly to privatize

the Chicago lakefront and harbor. The Supreme Court held:

The question, therefore, to be considered, is whether the legislature was

competent to thus deprive the state of its ownership of the submerged lands in theharbor of Chicago, and of the consequent control of its waters; or, in other words,

whether the railroad corporation can hold the lands and control the waters by thegrant, against any future exercise of power over them by the state.

That the state holds the title to the lands under the navigable waters of Lake

Michigan, within its limits, in the same manner that the state holds title to soilsunder tide water, by the common law, we have already shown; It is a title held

in trust for the people of the state, that they may enjoy the navigation of thewaters, carry on commerce over them, and have liberty of fishing therein, freed

from the obstruction or interference of private parties. The trust devolving uponthe state for the public, and which can only be discharged by the management and

control of property in which the public has an interest, cannot be relinquished by atransfer of the property. The control of the state for the purposes of the trust can


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is prohibited from alienating the right of all of the people to the lakebed of Lake Michigan. In

Lake Sand Co. v. State, 68 Ind. App. 439, 120 N.E.714 (Ind. Ct. App. 1918), a private Illinois

company claimed a right to mine sand from the Lake Michigan lakebed within the State of

Indiana. This was a claim by a business that it had a non-exclusive right to take materials from

the lakebed, although it conceded the State of Indiana owned the lakebed. The court in Lake

Sand held, citing a number of cases from a number of jurisdictions (U.S. Supreme Court, Ohio,

Illinois, Wisconsin, Florida, and Arkansas), that the resources of the lakebed are owned and

held by the State in trust for the benefit of all the citizens of the state for their common use not

their individual exclusive use. Id. at p. 715-716. The Court also explained that the State in its

sovereign capacity is without power to convey or curtail the right of its people in the bed of

Lake Michigan...Id.at p. 716 This holding was reiterated and elaborated upon by the Indiana

Supreme Court in 1950 in State v. Kivett, 228 Ind. 623, 95 N.E.2d 145, 148 , 95 N.E.2d 145

(Ind. 1950).

2. THE STATES OWNS AND HOLDS IN TRUST THE LAKEBED OFLAKE MICHIGAN UP TO THE ORDINARY HIGH WATER MARK

Having established that the State of Indiana owns and holds the lakebed of Indiana in

trust for the benefit of all citizens for their common use, the Court need go no further with this

case. Gunderson cannot as a matter of law own property that lies in the lakebed of Lake

Michigan. But, Gunderson argues that the lakebed is actually only the land under the Lake at

any given moment. This is a totally unsupported interpretation of law and Gunderson has cited

no case supporting its contention. In fact, the U.S. Supreme Court has repeatedly affirmed that

the boundary of state title is determined by the OHWM, not the changing location of the

waters edge at any moment.


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Following Shively, an over-whelming body of state and federal case law addresses this

question and makes it abundantly clear that the lakebed of a navigable lake transferred to a state

upon admission to the union is encumbered with the public trust that extends to the OHWM.

[cites] The common law establishment of the OHWM as the boundary of a navigable water is

also codified in the 1953 Submerged Land Act, [cite].State Dept of Natural Res. v. Pankratz,

538 P.2d 984, 988 (Alaska 1975) This large body of case law is thoroughly addressed in the

Response Brief filed in this case by Defendant-Intervenors Alliance for the Great Lakes and

Save The Dunes, and need not be repeated here.

In Indiana, the U.S. District Court for the Northern District of Indiana, in U.S. v.

Carstens, 982 F.Supp.2d 874, 878, 2013 WL 6085970 (N.D. Ind 2013), recently addressed the

question of the boundary of the Lake Michigan lakebed in the Indiana Dunes National Park,

only a few miles from the beaches of Long Beach. The District Court made the following

Finding of Fact:

According to Indiana public trust doctrine, the beach area between theordinary high water mark and the edge of the water of Lake Michigan

(the land with the Park boundaries) is public land not owned by anyperson, entity, or municipality.Id. at Para. 24.

The District Court then reached the following Conclusions of Law:

The physical limit of federal navigable waterways includes within the

navigable waterways the land below the ordinary high water mark.(Para. 35) ; and

The land between the edge of the water of Lake Michigan and the

ordinary high water mark is held in public trust by the State of Indiana.Ill. Cent.R. Co. v. State of Illnois, 146 U.S. 387, 13 S. Ct. 110 (1892);

Lake Sand Co. v. State, 120 N.E. 715 (Ind. 1918).


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The Indiana Attorney General reached a similar conclusion in an Attorney Generals

Opinion rendered on November 22, 1978. (LBCA Exhibit 10), concluding that the natural

OHWM indicated by physical markings on the shore applies to Lake Michigan, stating:

The lands underlying navigable waters within a State belong to the State in itssovereign capacity subject to the paramount power of Congress to control such

waters for purposes of navigation. State v. Kivett (1950) 95 N.E. 2d 145. Federallaw defines lands beneath navigable waters as all lands covered by non-tidal

waters up to the ordinary high water mark. 43 USC 1301; U.S. v. Oregon, 295U.S. 1 (1935); U.S. v. Washington, 294 F.2d 830 (9 Cir. 1961). Physical

markings on the shore indicate the ordinary high water mark of non-tidal waters.Paine Lumber Co. v. U.S., 55 F 854 (1893); Willis v. U.S., 50 F. Supp. 99 (D.C.

W. Va. 1943); See also Indiana Water Law (1968) by Graham Waite.

Based on the cases cited above, it is my opinion that, in general, the State ofIndiana owns the land lakewards of the ordinary high water mark on the Lake

Michigan shore.

On May 30, 2000, the Indiana Department of Natural Resources (DNR) ruled in a

Quasi-Declaratory Judgment under 312 ICA 3-1-15 on a question presented by Indiana

citizens who were in a dispute with the Northern Indiana Public Service Company (NIPSCO)

concerning use of the Lake Michigan beach bordering the NIPSCO power plant property in

Michigan City for fishing. The DNR Opinion, issued by Director Larry D. Macklin, concluded:

The bed of Lake Michigan below the [Ordinary High Watermark]within Indianas borders is held in trust for the citizens of IndianaWith

regards to your conflict with the [NIPSCO] concerning access to thebeach which borders their property, as long as you are below the ordinary

high watermark you are on land which is held in trust by the state for itscitizens, or in other words, on public property.My decision is that

[NIPSCO] has no jurisdiction over any exposed beach that is below theOHW. LBCA Exhibit 11.

Unlike the 1978 Attorney Generals Opinion, the DNR ruling refers to the elevation of

581.5 feet as the ordinary high watermark definition recognized by the U.S. Army Corps of

Engineers and the DNR and refers to DNRs 1995 regulatory definition of ordinary high


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watermark at 312 IAC 1-1-26. However, that definition actually provides two options for

determining the location of the OHW:

Sec. 26. "Ordinary high watermark" means the following:

(1) The line on the shore of a waterway established by the fluctuationsof water and indicated by physical characteristics. Examples of these

physical characteristics include the following:

(A) A clear and natural line impressed on the bank.(B) Shelving.

(C) Changes in character of the soil.(D) The destruction of terrestrial vegetation.

(E) The presence of litter or debris.

(2) Notwithstanding subdivision (1), the shore of Lake Michigan at fivehundred eighty-one and five-tenths (581.5) feet I.G.L.D., 1985 (five

hundred eighty-two and two hundred fifty-two thousandths (582.252) feetN.G.V.D., 1929).

The first definition may or may not be broader than the fixed elevation established in the

second definition, depending on the water level at any given time. The conditional phrase,

Notwithstanding subdivision 1,, should be read as intending to state an alternative

minimum standard that can readily and consistently be determined at all locations including

those where no physical indications of water fluctuations are present. Under rules of statutory

construction, the second definition cannot be read as displacing, superseding or voiding the first

definition. Indeed, if there are physical indications that the water fluctuations are actually higher

or lower than the fixed elevation, those physical characteristics are indicators of the actual, site-

specific OHWM.

While the fixed elevation may be useful for the Corps of Engineers and DNR

administrative purposes across Lake Michigan, there is good reason to apply the first definition

used by the Attorney General in its 1978 Opinion and referred to as the natural ordinary high

water mark or natural OHWM to questions of public and private ownership of the Lake


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Michigan lakebed beach in Long Beach. These are beaches where the physical characteristics of

the waters action are readily observable by anyone on the beach. These beaches have

historically and even seasonally experienced dramatic changes in water levels which

demonstrate that the OHWM at this southern tip of the Lake Michigan lakebed at least in

some locations -- is actually quite a bit higher than the 581.5 elevation established by the Corps

of Engineers for the entire Great Lakes system.

For example, 2014 photographs taken by LBCA Members show that within a single

year, the waters edge of the Lake can change from a location over one hundred feet from the

established dune grass behind the Gunderson house to a location just a few feet from that same

dune grass. LBCA Exhibit 2-A and 2-B. That the dune grass grows no lower is a sound

indicator that the OHWM is at least as high as the dune grass behind the Gunderson house. The

line of dune grass all across the Long Beach beaches is a consistent and readily observable

physical demarcation. However, it may not represent the highest water level at which the Lake

has stood even in the recent past. LaPorte County tax maps designated by LBCA shows that, as

recently as 1993, the Lake covered half of the Gundersons 150 foot Lot. (LBCA Exhibit 13)

U.S. Corps of Engineer photos and drawings for an emergency plan to protect the shoreline

show the Lake was even higher in the 1960s and 1970s, held back only by a sea wall at Stop

23 and rip rap designed to protect Lake Shore Drive itself at Stop 31. (LBCA Exhibit 14)

Another historic photograph, found by LBCA Member Patrick Cannon at the Michigan City

Lighthouse Museum shows that in 1929-1930 the Lake sat at the doorstep of homes on the

northside of Lake Shore Drive, likely including the Gunderson house. That photo shows a home

just doors from the Gunderson house which had actually fallen into the Lake. (LBCA Exhibit


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15)Other photos in that same exhibit show the variance in Lake levels on the beach in the

vicinity of the Gunderson Lots at various times since that early era. (LBCAExhibit 15)

The significance of this evidence is that it shows the far reach of the true lakebed and

OHWM of Lake Michigan on the Long Beach shore at the southern tip of the Lake. The photo

of Gundersons neighbors house falling into the Lake demonstrates quite impressively what

can and will happen if private parties, such as the Gundersons, succeed in claims that they own

and have an exclusive right to control land within the lakebed. They will construct homes,

decks, driveways, fences, and other appurtenances as many lakefront Long Beach

homeowners have -- oblivious to the location of the lakebed. Indeed, de factoprivatization of

the Lake Michigan lakebed has already taken place at many lakefront locations in Long Beach

due to lax definition and enforcement of the OHWM boundary and, as demonstrated by

LBCAs title evidence discussed above, incorrect interpretations of deeds and plats that lead to

encroachment on the lakebed.

2. THE STATE HAS NOT ALIENATED ANY PART OF THE LAKEMICHIGAN LAKEBED TO GUNDERSON.

InKivett, the Indiana Supreme Court explained that under the federal Equal Footings

Doctrine the lakebed of the White River, a navigable water, came into State ownership upon

Indianas admission into the Union in 1816 and that thereafter the State could not part with the

title to such real estate, except by an act of the Legislature. 95 N.E.2d 145, 148.

Gunderson has designated no evidence nor made any claim that the State of Indiana has

by legislation (or in any other fashion) granted to it any part of the Lake Michigan lakebed.

3. GUNDERSON HAS NOT ACQUIRED TITLE TO THE DISPUTED LAND

BY THE LAW OF ACCRETION AND RELICTION.


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Gunderson argues that as a matter of law and [sic] any relection [sic] inures to the

benefit of Gunderson. (Gunderson Brief, p. 7). This is incorrect both legally and factually.

As an initial matter, Gunderson has failed to produce any evidence of reliction or

avulsion or accretion for that matter.

Reliction, is defined as:

An increase of the land by the sudden retreat of the sea or landsarising from the sea and in navigable rivers, (q.v.) generally belong to the

state and all relicted lands of unnavigable rivers generally belong to theproprietor of the estate to which such rivers act as boundaries.But this

reliction must be from the sea in its usual state for if it should inundatethe land and then recede, this would be no relictionReliction differs

from avulsion, (q.v.) and from alluvion. (q.v.).A Law Dictionary, Adapted to the Constitution and Laws of the United

States, John Bouvier (1856)

Whether Lake Michigan has retreated or simply lies within different places within its

bed is a question of fact. Avulsion, on the other hand, involves a sudden change in a water

bed or in the course of a stream. West's Encyclopedia of American Law, Edition 2. Gunderson

hasnt demonstrated that Lake Michigans waterbed has changed. Accretion is generally

defined as a gradual accumulation of land by natural causes. (Addition of portions of soil, by

gradual deposition through the operation of natural causes, to that already in possession of the

owner. Blacks Law Dictionary, 4thEd) Gunderson has provided no evidence of a gradual

build-up of soil on its property. Indeed, there is no evidence that the lake has retreated, grown or

changed its bed or that any land has gradually grown on the Gunderson property. In fact, the

historical evidence designated by LBCA suggests that the Lake is constantly moving within its

lakebed. A explained by the Michigan Supreme Court in Glass v. Goeckel:

[A] term such as, ordinary high water mark attempts to encapsulate the

fact that water levels in the Great Lakes Fluctuate. This fluctuation resultsfrom temporary exposure of the land that may hen remain exposed above


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the water where water currently lies. This land, although not immediatelyand presently submerged, falls with the ambit of the public trust because

the lake has not permanently receded from that point and may yet againexert its influence up to that point., 703 N.W.2d 53, 71 (2005):

LBCA disputes Gundersons contention that reliction has enlarged its property. But

the burden on this question is not on LBCA or the State. Gundersons failure to designate

evidence supporting its theory of ownership is fatal to its Motion for Summary Judgment on this

theory.

Furthermore, Gundersons contention that its property has grown by virtue of reliction

or avulsion or accretion for that matter ignores the fact that it doesnt own property below the

OHWM both as a matter of the extent of its Warranty Deed and as a matter of law. The

property conveyed under Gundersons Warranty Deed can be no more than that which was

conveyed in the Federal Land Patent from which it derives and that Patent did not, as a matter

of fact, and could not, as a matter of law, convey title below the OHWM. Shively v. v. Bowlby,

152 U.S. 1, 58 (1894) (Grants by Congress of portions of the public lands within a territory to

settlers thereon, though bordering on or bounded by navigable waters, convey, of their own

force, no title or right below high-water mark, and do not impair the title and dominion of the

future state, when created...); Bd. of Park Comr v. Taylor, 108 N.W. 927, 930 (Iowa 1906)

(The title of the riparian owner goes only to the high-water mark)

It is the State of Indiana that owns the lakebed of Lake Michigan and any reliction,

avulsion or accretion that were found to have occurred within that lakebed is the property of the

State, not the upland property owner.U.S. v. Carstens, 982 F.Supp.2d 874, 878, 2013 WL

6085970 (N.D. Ind 2013) (The land between the edge of the water of Lake Michigan and the

ordinary high water mark is held in public trust by the State of Indiana. CitingIll. Cent.R. Co.


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v. State of Illnois, 146 U.S. 387, 13 S. Ct. 110 (1892);Lake Sand Co. v. State, 120 N.E. 715

(Ind. 1918).)

In its Brief at p. 10, Gunderson hangs its hat on a misreading of the definition of lands

beneath navigable waters in Section 1301(a) of the Submerged Lands Act and would have this

Court effectively read out of subsection (1) the key reference up to the ordinary high water

mark. Gunderson also disingenuously fails to cite subsections (2) and (3) of Section 1301

which reference permanently or periodically covered tidal waters and filled in, made, or

reclaimed lands which formerly were lands beneath navigable waters. The following is the full

definition:

(a) The term lands beneath navigable waters means

(1) all lands within the boundaries of each of the respective States whichare covered by nontidal waters that were navigable under the laws of the

United States at the time such State became a member of the Union, oracquired sovereignty over such lands and waters thereafter, up to the

ordinary high water mark as heretofore or hereafter modified byaccretion, erosion, and reliction;

(2) all lands permanently or periodically covered by tidal waters up to butnot above the line of mean high tide and seaward to a line threegeographical miles distant from the coast line of each such State and to

the boundary line of each such State where in any case such boundary asit existed at the time such State became a member of the Union, or as

heretofore approved by Congress, extends seaward (or into the Gulf ofMexico) beyond three geographical miles, and

(3) all filled in, made, or reclaimed lands which formerly were lands

beneath navigable waters, as hereinabove defined;..

43 U.S.C. 1301(a) [emphasis added]

A plain reading of subsection (1) and a reading that is consistent with the long-

established law, starting with Shivelyand most recently pronounced in Glassand Carstens on

Lake Michigan, as well as subsections (2) and (3), is that the OHWM remains the outer boundary


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of the land beneath navigable waters regardless of whether its location is modified by

accretion, erosion, and reliction. See State of Oregon v. Corvallis Sand & Gravel Co., 582 P.2d

1352, 1361 (Or. 78) ([I]f the line of ordinary high water is the boundary between the bed of a

navigable river, owned by the state, and the privately-owned riparian upland, that boundary will

remain at the line of ordinary high water, although gradual changes in the course of the river or

the contour of the banks may alter the actual location of the high-water line.)

C. THE SCOPE OF THE PUBLICS RIGHT TO USE THE BEACH IN LONG

BEACH.

1. THE SCOPE OF PUBIC USES COVERED UNDER THE PUBLIC TRUST

DOCTRINE INCLUDES RECREATIONAL USES

As discussed above, the lakebed of Lake Michigan in dispute in this case is held by the

State of Indiana subject to the federal Public Trust Doctrine. As owner and trustee, the State has

the authority to define what constitutes permissible public use of the lakebed. See PPL Montana,

LLC v. Montana, 132 S. Ct. 1215, 1235 (... [T]he States retain residual power to determine the

scope of the public trust over waters within their borders.)

InLake Sand Co. v. State, 68 Ind. App. 439, 120 N.E.714 (Ind. Ct. App. 1918) and State

v.Kivet, 228 Ind. 623, 95 N.E.2d 145 (1950), the Indiana Courts, as have other states courts,

drew a firm line against individual members of the public monopolizing or depleting the

resources of the lakebed of a navigable water for their own personal use and profit. The public

trust protects the common use of the lakebed for all members of the public.

However, narrowly defining permissible common uses in which all may partake,

without excluding others, would be inconsistent with the historic use of Indianas Lake Michigan

beaches and with Indianas citizens interest. The publics broad right to use Lake Michigans


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lakebed for not only navigation, commerce, and fishing, but also for all normal and customary

recreational beach and shore uses, has been an economic driver for Northwest Indiana for

generations. The community of Long Beach is a perfect example of this having been marketed

since the 1920s as a beach resort community. A narrow definition of these uses would be

inconsistent with the unique nature and broad expanse of Northwest Indianas Lake Michigan

beaches which invites a full array of water and beach recreational uses. Not least of all, a narrow

definition would harm property values in Long Beach and defeat the interest of LBCA Members,

as members of public and residents of Long Beach, in fully using, enjoying and preserving these

unique stretches of beach and their beach community homes. See Affidavits of Long Beach

residents in LBCA Exhibits 16-A through 16-N and a photo of a typical summer day at the

beach in Long Beach LBCA Exhibit 17..

A broad interpretation of the public uses encompassed within public trust doctrine is

consistent with common law evolution of the public trust doctrine in the Midwest and across the

country. InMarks v. Whitney, 98 Cal. 790, 491 P.2d 374 (1971), the California Supreme Court

found that while the public trust has traditionally been defined in terms of navigation, commerce

and fisheries, it has also been held to include the right to fish, hunt, bathe, swim, to use for

boating and general recreation purposes the navigable waters of the state, and to use the bottom

of the navigable waters for anchoring, standing, or other purposes.Id. 796

Not surprisingly, the specific types of public use discussed by the courts often reflect

regional interests and activities on the water and beaches.

In Californias Pacific Ocean tidewaters, the California Supreme Court,-./0 1There is a

growing public recognition that one of the most important public uses of the tidelands--a use

encompassed within the tidelands trust--is the preservation of those lands in their natural state, so


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that they may serve as ecological units for scientific study, as open space, and as environments

which provide food and habitat for birds and marine life, and which favorably affect the scenery

and climate of the area.Id..

The Wisconsin Supreme Court, not surprisingly adds hunting to the list of public uses,

Although the public trust doctrine originally existed to protect commercial navigation, it has

been expansively interpreted to safeguard the public's use of navigable waters for purely

recreational purposes such as boating, swimming, fishing, hunting, recreation, and to preserve

scenic beauty.

The Minnesota Supreme Court has held that the public uses comprehended by the public

trust on beaches in a Lake Minnetonka beach community include not only navigation by

watercraft for commercial purposes, but the use also for the ordinary purposes of life such as

boating, fowling, skating, bathing, taking water for domestic or agricultural purposes, and cutting

ice.Nelson v. De Long, 213 Minn. 425, 431 , 7 N.W.2d 342 (Minn. 1942)

The Florida Supreme Court found, It is difficult indeed to imagine a general and public

right of fishing in the sea, and from the shore, unaccompanied by a general right to bathe there,

and of access thereto over the foreshore for that purpose. White v. Hughes, 190 So. 446, 449

(Fla.1939).

The Illinois Supreme Courtin People v. Chicago Park Dist, 360 NE2d 773 (Ill.1976)

considered the public right to use Lake Michigan beaches along Chicagos lakefront and held the public

uses encompassed by the public trust extend broadly to a broad range of recreational uses.

'We have no difficulty in finding that, in this latter half of the twentiethcentury, the public rights in tidal lands are not limited to the ancient

prerogatives of navigation and fishing, but extend as well to recreationaluses, including bathing, swimming and other shore activities. The public

trust doctrine, like all common law principles, should not be consideredfixed or static, but should be molded and extended to meet changing


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conditions and needs of the public it was created to benefit.Borough ofNeptune City v. Borough of Avon-By-The-Sea(1972)Id.at 780.

2. THE CURRENT AND HISTORIC USE OF THE LAKE MICHIGAN

BEACHES IN INDIANA DEMONSTRATE THE RECREATIONAL USESPROTECTED BY THE PUBLIC TRUST DOCTRINE IN INDIANA

Indiana courts have not delineated the scope of the publics right to use the lakebed of

Lake Michigan under the Public Trust Doctrine. The Court should take this opportunity to do so

and should align the scope of Indianas Public Trust Doctrine with modern public uses of Lake

Michigan beaches, with the interests of its citizens, as shown by their broad current and historic

use of these beaches for a multitude of recreational uses, and with the economic interest of the

State of Indiana in preserving the broad expanse of Lake Michigan lakebed within its

boundaries for the common good.

LBCA has designated in evidence the affidavits of fourteen Long Beach Residents

(Long Beach Residents) who do not own property on the north side of Lake Shore Drive, but

who live within walking distance of the beach. LBCA Exhibits 16-A through 16-N.These

affidavits describe in detail the types of uses they and their families and friends make and have

made of the Lake Michigan lakebed beaches bordering the Town of Long Beach for at least

twenty years and in some cases for generations. Those uses include the rich panoply of

traditional beach recreational uses members of the public would be expected to make of a public

beach in close proximity to their home: Swimming; sunbathing; reading; picnics and cookouts

with umbrellas, chairs and tables; family and friend beach days and gatherings; watching the

sunset: building sandcastles: gathering shells and rocks; birthday and graduation celebrations;

attending beach weddings: boating; temporarily anchoring boats: temporarily parking kayaks and

jet skies on the beach; playing beach games, such as catch, touch football and kickball; evening


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D. IN THE ALTERNATIVE, RESIDENTS OF THE TOWN OF LONG

BEACH HAVE ESTABLISHED A PRESCRIPTIVE EASEMENT OVER

THE BEACH UP TO THE ORDINARY HIGH WATER MARK AND IN

SOME INSTANCES BEYOND THE ORDINARY HIGH WATER

LBCA believes Gundersons Summary Judgment Motion and its Complaint, as a whole,

are completely without merit under either the facts or the law and should be summarily denied

and dismissed by this Court without further proceedings. Nonetheless, should the Court find

that Gunderson owns the Lake Michigan beach down to the low water mark or the waters

edge wherever that might be at any moment, LBCA, in the attached Cross Motion for Summary

Judgment, moves the Court to render Summary Judgment in favor of LBCA, finding that

Residents of Long Beach and members of the public have established a prescriptive easement

over such property under Indiana law.

An action to quiet title under Indiana law is intended to allow litigants to settle in one

comprehensive action all conflicting claims to real property. Central Federal Savings & Loan

Assn. v. Cummings, 216 Ind. 636, 25 N.E.2d 638 (1940) Therefore, all questions of title

affecting title, including claims of adverse possession and prescriptive easement, may be

litigated in a quiet title action.Indiana B & W Ry. Co. v. Allen, 113 Ind. 581, 15 N.E. 446

(1888);Danforth v. Meeks, 176 Ind. 400, 96 NE. 153, 154 (1911);Hipes v. Douherty, 176 Ind.

379, 96 N.E. 152 (1911). LBCAs Cross Motion for Summary Judgment on its claim of

prescriptive easement must be resolved here because the Gunderson Compliant in this matter

expressly seeks to exclude all other persons from the beach property in question. Gunderson

Complaint, p. __. Therefore, the question of Long Beach Residents and the publics right to use

such beach under their long-established prescriptive easement are intrinsically at issue here if

the Court rules in favor of Gunderson on its claim of ownership in fee simple.


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1. THE ELEMENTS OF PRESCRIPTIVE EASEMENT

UNDER INDIANA LAW

InFraley v. Minger, 829 N.E.2d 476 (Ind.2005), the Indiana Supreme Court reviewed the

history of the doctrine of adverse possession in Indiana and reformulated the elements necessary

for a person without title to obtain ownership to a parcel of land. It held that the claimant in

such circumstances must establish clear and convincing proof of (1) control, (2) intent, (3)

notice, and (4) duration.Id. 486. Later that same year, the Supreme Court held 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

NE2d 403, 406 (Ind. 2005)

a. CONTROL

Under Fraleys reformulation of the elements of Adverse Possession, the claimant must

exercise the 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). This element can be shown by use and control of land for a specific

purpose. Hoose v Doody, 886 NE2d 83, 94 (Ind. Ct App 2008)

Use and control of the Lake Michigan beaches by and for the public has been established

both by Long Beach Residents extensive, open and notorious use of the beach under claim of

right for greater than twenty years and even for generations, as shown by the Long Beach

Residents affidavits designated as evidence in this case. As discussed in Section D above, these

uses involve physically occupying areas of the beach for purposes which are normal and

customary on a beach. While these uses are not exclusive in the sense of permanently

excluding other members of the public or the servient landowner from that portion of the beach


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so occupied, permanent occupation of a beach should not be found to be required under this

element based on the characteristics of the land and the purpose of the easement. Temporary

occupation of various areas of the beach - by planting umbrellas, setting up chairs and tables,

playing a game of touch football, cook outs and picnicking, parking boats, sunbathing by its

nature is an exercise of control of areas of the beach consistent with normal and customary use of

beach property.

Furthermore, the Long Beach Resident affiants describe participating in beach clean-up

days and helping to construct and maintain beach access areas. LBCA Exhibits 16-A through

16-N.They also describe picking up litter all along the Lake Michigan beach, even in the dune

grass including in beach areas lakeward of the Gunderson Lots and other private owners Lots.

Long Beach Residents, also pay taxes to the Town of Long Beach, some of which are used to

pay for maintenance of beach access areas,known colloquially as Stops, and for policing and

enforcement of Town of Long Beach Beach Rules on the beach.

On behalf of its residents, the Town of Long Beach also exercises control over the Lake

Michigan beach bordering the Town consistent with the public easement held by its residents

thereon. The Town owns and maintains the Stop access properties all along Lake Shore Drive

specifically designed to provide access to the beach by the majority of its residents who cannot

access the beach from their own properties. They are known as Stops due to the fact that the

Town of Long Beach historically operated a shuttle system (trollies) on Lake Shore Drive that

transported residents to these beach access points. The Stops have been improved and are

maintained by the Town and Resident volunteers, and feature stairways and paths that allow

access to the beach without crossing upland homeowners lots. LBCA Exhibit 20. These Stop

access areas are open to all members of the public.


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That the Town of Long Beach, on behalf of its residents, exercises control on the Lake

Michigan Beach consistent with the public easement is further evidenced by Beach Rules it

posts at every stop, prohibiting glass containers, dogs, fireworks, bonfires without a permit and

warning that there are no lifeguards on the beach. LBCA Exhibit 21.The Town also runs a

permitting system for bonfires on the beach. The Town police enforce these rules and patrol the

entire length of the beach during high use periods on all-terrain vehicles including all areas up

to the OHWM. The Town has also adopted Policies for Development of the Lake Michigan

beach in its 2009 Comprehensive Plan recognizing its duty to protect the beach and public access

thereto:

Policy 1 Recognize that the Lake Michigan beach is a publicly ownednatural resource that must be preserved for future generations. Therefore,

no action should be taken that either compromises the environmentalintegrity of natural resources or reduces public access. LBCA Exhibit

22.

b. INTENT

Permission defeats intent, and permission can be implied by a cordial relationship. See

Wilfong, relying on Searcy v. LaGrotte, 175 Ind.App. 498, 372 N.E.2d 755 (1978) (two sisters

owned adjacent land without formal agreement shared drive and sorage area). However, where

there has been use of an easement for 20 years which is unexplained, such use will be presumed

to be under a claim of right, adverse, and sufficient to establish title by prescription unless that

use is contradicted or explained. . . . [A] rebuttable presumption that use is adverse arises under

those circumstances, and in order to rebut that presumption the owner must explain such use by

demonstrating that he merely permitted the claimant to use his land. Chickamauga Properties,

Inc v Barnard, 853 NE2d 148, 153 (Ind. Ct App 2006).


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In Carnahan v Moriah Prop Owners Ass'n, Inc, 716 NE2d 437, 442 (Ind 1999), the

Indiana Supreme Court found that recreational use raises a special question of adversity because

it is often not inconsistent with the servient owners use and therefore must be presumed to

permissive. Therefore, adversity must be demonstrated by clear and convincing evidence. Such

evidence exists in this case.

Adverse use has been defined as a "use of the property as the owner himself would

exercise, disregarding the claims of others entirely, asking permission from no one, and using the

property under a claim of right." Carnahan, Id. p. 442, citingNowlin v. Whipple, 120 Ind. 596,

598, 22 N.E. 669, 670 (1889).

In the case at hand, the fourteen Long Beach Residents affidavits designated by LBCA

demonstrate by clear and convincing evidence that these residents, their friends and neighbors, as

well as the general public, have used the Lake Michigan beach below the ordinary high water

mark for all beach and water related uses, as any person would, including Gunderson and other

purported owners of such beaches. These uses have included setting up tables and chairs,

planting umbrellas, temporarily parking boats on the beach, playing games, holding family

events such as birthday and graduation parties on the beach, and even holding weddings on the

beach. See LBCA Exhibit 16-A through 16-N.

All of these Long Beach Residents state their belief that they have the right as residents

of Long Beach and members of the public to make such uses of the Lake Michigan Beach,

including the disputed beach lakeward of the Gunderson Lots and other private property owners,

and that they have done so in plain view of the Gunderson house and such other property owners

and have never asked permission. LBCA Exhibits 16-A through 16-N.


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Some of the Long Beach Residents affidavits state that they have seen signs claiming

private property and private beach, but have ignored those signs believing their own use of

the beach was by legal right. LBCA Exhibits 16-A through 16- N.A number of the Long

Beach Resident affiants recite incidents in which they have had verbal disputes with lake side

home owners, including an apparent Gunderson family member, regarding their uses of the

beach. One Long Beach Resident affiant states that in the summer of 2009 he encountered a

make-shift barrier constructed on the beach by the homeowner at 2000 Lakeshore Drive

apparently attempting to exclude others from use of the beach down to the waters edge. The

affiant states :

[A] heated discussion took place between the owners of 2000 Lakeshore

Drive and other residents using the beach in this area. On this date, Ipersonally verbally confronted the persons who identified themselves as

the owners of the 2000 Lakeshore Dr. property. I told them that at mosttheir property extended to the vegetation line often referred to as the

Ordinary High Water Mark. They advised me that their relator told themthat they owned to the shoreline. LBCA Exhibit 1, Para. 18.

Notwithstanding the observed postings claiming private property and private beach and

these verbal disputes with Lakeshore Drive homeowners, these Long Beach Resident affiants state that

they continued to use the beach in these locations as they have always done, believing they do so as a

matter of right. LBCA Exhibits ____.

Furthermore, the Long Beach Resident affiants each state that their ability to use the beach in the

manner in which they have is a primary reason that they and their families purchased homes in Long

Beach. LBCA Exhibits 16-A through 16-N. This fact makes it clear that these Long Beach Residents

have always understood their right to use the beach as a personal right and a property right based on the

public nature of the beach as well as their status as Long Beach homeowners and residents.


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. c. NOTICE

Under theFraleyreformulation of the elements of adverse possession, the actions of a

party claiming a prescriptive easement 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)Ludban v.

Burtch, 951 N.E.2d 846 (Ind. App., 2011)

As shown by the Long Beach Residents affidavits the affiant Long Beach Residents,

their families, friends and neighbors have used the entire Lake Michigan beach north of the

private property lots on Lake Shore Drive, including the Gunderson Lots, openly and in plain

view of the private property owners. LBCA Exhibits 16-A through 16-N.The character of

these residents and the publics use of these beaches, as described in the Long Beach Residents

affidavits and depicted in photographic exhibits, was open and notorious e.g. setting up chairs

and tables, planting umbrellas, picnicking and cook-outs, parking boats, playing touch football,

holding family gatherings and events, and having evening campfires. As such, there can be no

question that private property owners adjacent to the beach were well aware of these public uses

of the beach lake ward of their homes.

d. DURATION

TheFraleyreformulation of the elements necessary to establish a prescriptive easement

did not change the former common law requirement that a party claiming a prescriptive easement

must demonstrate that the elements of a prescriptive easement must be satisfied continuously for

a period of not less than twenty years. Wilfong v. Cessna Corp., 838 N.E.2d 403, 406 (Ind.2005);

Ludban v. Burtch,951 N.E.2d 846 (Ind. App., 2011)

The evidence designated satisfies this requirement. The Long Beach Residents affidavits

each state that the affiant has personally used the Long Beach Lake Michigan beaches in the


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manner described therein, openly and notoriously and under claim of right, for a wide range of

activities, including the beaches lake-ward of the Gunderson Lot and other private lots, for

greater than twenty years. LBCA Exhibits 16-A Through 16-N.In some instances, the affiants

state that they grew up in Long Beach and that their families have owned homes in Long Beach

and used the beach in the same manner and at the same locations for generations. These

affidavits recite use of the beach on a regular basis in some instances almost every day, others

weekly or bi-weekly. While beach use is most intense in the summer months, many of the

affiants use the beach throughout the year, as weather allows. Furthermore, seasonal use of a

prescriptive easement established for purposes of beach use is consistent with the character and

purpose of the easement and does not constitute abandonment or interruption of that use.

Bromelmeier v. Brookhart, 570 NE2d 90, 92 (Ind Ct App 1991)

(holding mere intermissions in use of reasonable duration do not prevent acquisition of an

easement and abandonment denotes the subjective element of intent as well as mere nonuse.)

2. THE SCOPE OF THE PRESCRIPTIVE EASEMENT IS

COMMENSURATE WITH THE PURPOSE OF THE EASEMENT

[W]hile enjoyment of an easement will not be extended by implication, The proper

function of a particular easement should be determined by the purpose it is intended to serve.

Bromelmeier v. Brookhart, 570 N.E.90, 92 (Ind. App. Ct. 1991). Also seeN.Y.C.R. Co. v.

Yarian, 219 Ind. 447, 39 N.E.2d 604, 606 (1942). In this case, the scope of the public easement

acquired by Long Beach residents and members of the public extends to all of the normal and

customary beach uses that Long Beach Residents have made of the Lake Michigan beach as

shown in the Long Beach Residents Affidavits.


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VI. CONCLUSION

Based on the facts and law recited above, Gundersons Motion for Summary Judgment

must be denied. Further, the facts and the law in this case so strongly favor the State of Indiana

and the Defendant-Intervenors that the Court should end this litigation and the uncertainty

caused by it by rendering Summary Judgment in favor of the Defendant and Defendant

Intervenors. A trial is unnecessary given the failure of Gundersons Warranty Deed to

demonstrate ownership of the land in dispute, both on a legal and factual basis, and the

overwhelming law confirming State ownership of the lakebed of anavigable water, unless the

State has by act of its legislature divested itself of title. As Indiana has not divested itself of title

to Gunderson, this is an open and shut case.

However, in the alternative, should the Court disagree with LBCA and find that

Gunderson does hold title to the disputed beach below the OHWM, the Court should none the

less grant Summary Judgment for LBCA recognizing the public prescriptive easement over the

disputed beach established by Long Beach Residents long, open, and adverse use of such

beach.

Respectfully submitted,

Patricia F. Sharkey

Environmental Law Counsel, P.C.

Suite 3700

180 North LaSalle Street

Chicago, Illinois 60601

312.981.0404

[email protected]

ROA #. 4767-95-TA


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Long Beach Community Alliance's Brief opposing Gunderson assertion of beach ownership

Documents

Transcript of Long Beach Community Alliance's Brief opposing Gunderson assertion of beach ownership