ILNews

Court rules on 2 water-related cases

Michael W. Hoskins
January 1, 2008
Keywords
Back to TopCommentsE-mailPrintBookmark and Share
The Indiana Court of Appeals decided two environmental cases today involving issues pertaining to lake levels and the rights lakefront property owners enjoy.

In Center Townhouse Corp., et al. v. City of Mishawaka, No. 71A04-0612-CV-707, the court tackled an issue it hasn't specifically dealt with before and decided not to expand Indiana's riparian rights, or those privileges extended to waterfront property owners, to include the right of unobstructed view of the water.

A group of eight townhome owners brought an inverse condemnation action against the city and local parks board after it constructed a pedestrian bridge over the St. Joseph River as part of a riverwalk project. The trial court had determined the city took property interests belonging to the community and owners without just compensation, but a jury returned a no-damage verdict. Owners appealed for damages and the city cross-appealed, arguing that a taking of rights had not even occurred. The appellate court affirmed the lower court's rulings.

The appellate court analyzed state statute but determined the law isn't completely clear about what's entailed in riparian rights as far as unobstructed views. Judges relied on caselaw from Michigan, Florida, New Jersey, and Georgia that has addressed this issue and adopted those as legally protected rights.

"Landowners urge us to follow suit and hold that, in Indiana, riparian rights include the right to an unobstructed view of the water creating those riparian rights such that a loss of view is compensable in an inverse condemnation action," Judge James Kirsch wrote. "After careful consideration, we are unwilling to do so. Deciding the scope of a landowner's view (how high, how far, from what vantage point, etc.), and, if obstructed in some way for some reason, determining how much obstruction is too much, is inappropriate, if not impossible for this court."

Rather, the court pointed out that this is a policy decision best left to legislators who can work with state resource officials and local planning officials to make the best decisions.

"Those authorities, not an appellate court, should decide on proper views over and across neighboring properties and waterways, as they are in the best position to prescribe reasonable restrictions in order to protect people who have paid large sums of money in order to border Indiana's lakes, rivers, and streams," Judge Kirsch wrote.

A second decision today in Larry Bowyer d/b/a Lakes Limited Liability Corp. v. Indiana Department of Natural Resources, No. 09A02-0612-CV-1116, involves the water level of Lake Cicott in Cass County. The DNR filed a complaint against Bowyer, who'd been dumping construction debris into the public lake and altering its shoreline and water level without a permit. The trial court determined the lake was public, not a private lake as the parties had argued, and was subject to the DNR's regulation of its water level.

The appellate court affirms that decision, while indicating the state statute doesn't clearly map the process for determining what a lake level should be. The court determined Bowyer's contentions are without merit.
ADVERTISEMENT

Post a comment to this story

COMMENTS POLICY
We reserve the right to remove any post that we feel is obscene, profane, vulgar, racist, sexually explicit, abusive, or hateful.
 
You are legally responsible for what you post and your anonymity is not guaranteed.
 
Posts that insult, defame, threaten, harass or abuse other readers or people mentioned in Indiana Lawyer editorial content are also subject to removal. Please respect the privacy of individuals and refrain from posting personal information.
 
No solicitations, spamming or advertisements are allowed. Readers may post links to other informational websites that are relevant to the topic at hand, but please do not link to objectionable material.
 
We may remove messages that are unrelated to the topic, encourage illegal activity, use all capital letters or are unreadable.
 

Messages that are flagged by readers as objectionable will be reviewed and may or may not be removed. Please do not flag a post simply because you disagree with it.

Sponsored by
ADVERTISEMENT
Subscribe to Indiana Lawyer
  1. What a fine article, thank you! I can testify firsthand and by detailed legal reports (at end of this note) as to the dire consequences of rejecting this truth from the fine article above: "The inclusion and expansion of this right [to jury] in Indiana’s Constitution is a clear reflection of our state’s intention to emphasize the importance of every Hoosier’s right to make their case in front of a jury of their peers." Over $20? Every Hoosier? Well then how about when your very vocation is on the line? How about instead of a jury of peers, one faces a bevy of political appointees, mini-czars, who care less about due process of the law than the real czars did? Instead of trial by jury, trial by ideological ordeal run by Orwellian agents? Well that is built into more than a few administrative law committees of the Ind S.Ct., and it is now being weaponized, as is revealed in articles posted at this ezine, to root out post moderns heresies like refusal to stand and pledge allegiance to all things politically correct. My career was burned at the stake for not so saluting, but I think I was just one of the early logs. Due, at least in part, to the removal of the jury from bar admission and bar discipline cases, many more fires will soon be lit. Perhaps one awaits you, dear heretic? Oh, at that Ind. article 12 plank about a remedy at law for every damage done ... ah, well, the founders evidently meant only for those damages done not by the government itself, rabid statists that they were. (Yes, that was sarcasm.) My written reports available here: Denied petition for cert (this time around): http://tinyurl.com/zdmawmw Denied petition for cert (from the 2009 denial and five year banishment): http://tinyurl.com/zcypybh Related, not written by me: Amicus brief: http://tinyurl.com/hvh7qgp

  2. Justice has finally been served. So glad that Dr. Ley can finally sleep peacefully at night knowing the truth has finally come to the surface.

  3. While this right is guaranteed by our Constitution, it has in recent years been hampered by insurance companies, i.e.; the practice of the plaintiff's own insurance company intervening in an action and filing a lien against any proceeds paid to their insured. In essence, causing an additional financial hurdle for a plaintiff to overcome at trial in terms of overall award. In a very real sense an injured party in exercise of their right to trial by jury may be the only party in a cause that would end up with zero compensation.

  4. Why in the world would someone need a person to correct a transcript when a realtime court reporter could provide them with a transcript (rough draft) immediately?

  5. This article proved very enlightening. Right ahead of sitting the LSAT for the first time, I felt a sense of relief that a score of 141 was admitted to an Indiana Law School and did well under unique circumstances. While my GPA is currently 3.91 I fear standardized testing and hope that I too will get a good enough grade for acceptance here at home. Thanks so much for this informative post.

ADVERTISEMENT