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Ruling: Easement to Eagle Creek indeed leads to water

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A trial court ruling that forbid residents of a lakefront subdivision from accessing the water from a public easement was overturned Monday by the Indiana Court of Appeals.

“Surely the reason for the easement was not merely to give residents a way to reach the edge of Bay Colony’s grounds so that they could gaze upon the shore and the water,” Senior Judge Randall Shepard wrote. The court reversed Marion Superior Judge Thomas Carroll’s ruling that limited access to the city-owned lake from the easement maintained by nonprofit neighborhood association Bay Colony Civic Corp.

“We thus conclude that the Association is correct that the easement was intended to give the residents a way to reach the reservoir,” Shepard wrote in Bay Colony Civic Corp. v. Pearl Gasper Trust and Bruce F. Waller, 49A05-1207-PL-365. “The trial court erred by barring residents from using the easement to access the water. … We reverse the trial court’s judgment and remand with directions to grant the Association’s motion for partial summary judgment.”

Pearl Gasper and Bruce Waller own lots in Bay Colony and posted private property signs on their docks unattached to their lots that had been built by previous owners. They also put up gates and fences to restrict access to the public reservoir. They cited plat language that said the easement “is established as an area over, through, and across which the owners in this subdivision, their tenants and invitees shall have access to public land adjoining Eagle Creek Lake.” They argued nothing in the easement language provided access to the water.  

After the plaintiffs blocked access to the reservoir from their docks, Bay Colony, the nonprofit neighborhood association, cleared brush, added riparian stone and made a footpath on the easement to make it safer and easier for residents to get to the water without using Gasper’s or Waller’s docks. Gasper and Waller sued the association and won an injunction from the trial court barring it from entering their lots, altering or removing their docks or blocking Gasper’s access to her dock. The trial court also agreed with the plaintiffs’ allegation that the association misused $1,732 to complete its upgrade.

The panel also reversed the monetary judgment. “We find no violation of the Association’s bylaws,” Shepard wrote.

 

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  1. A sad end to a prolific gadfly. Indiana has suffered a great loss in the journalistic realm.

  2. Good riddance to this dangerous activist judge

  3. What is the one thing the Hoosier legal status quo hates more than a whistleblower? A lawyer whistleblower taking on the system man to man. That must never be rewarded, must always, always, always be punished, lest the whole rotten tree be felled.

  4. I want to post this to keep this tread alive and hope more of David's former clients might come forward. In my case, this coward of a man represented me from June 2014 for a couple of months before I fired him. I knew something was wrong when he blatantly lied about what he had advised me in my contentious and unfortunate divorce trial. His impact on the proceedings cast a very long shadow and continues to impact me after a lengthy 19 month divorce. I would join a class action suit.

  5. The dispute in LB Indiana regarding lake front property rights is typical of most beach communities along our Great Lakes. Simply put, communication to non owners when visiting the lakefront would be beneficial. The Great Lakes are designated navigational waters (including shorelines). The high-water mark signifies the area one is able to navigate. This means you can walk, run, skip, etc. along the shores. You can't however loiter, camp, sunbath in front of someones property. Informational signs may be helpful to owners and visitors. Our Great Lakes are a treasure that should be enjoyed by all. PS We should all be concerned that the Long Beach, Indiana community is on septic systems.

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