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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. What is this, the Ind Supreme Court thinking that there is a separation of powers and limited enumerated powers as delegated by a dusty old document? Such eighteen century thinking, so rare and unwanted by the elites in this modern age. Dictate to us, dictate over us, the massess are chanting! George Soros agrees. Time to change with times Ind Supreme Court, says all President Snows. Rule by executive decree is the new black.

  2. I made the same argument before a commission of the Indiana Supreme Court and then to the fedeal district and federal appellate courts. Fell flat. So very glad to read that some judges still beleive that evidentiary foundations matter.

  3. KUDOS to the Indiana Supreme Court for realizing that some bureacracies need to go to the stake. Recall what RWR said: "No government ever voluntarily reduces itself in size. Government programs, once launched, never disappear. Actually, a government bureau is the nearest thing to eternal life we'll ever see on this earth!" NOW ... what next to this rare and inspiring chopping block? Well, the Commission on Gender and Race (but not religion!?!) is way overdue. And some other Board's could be cut with a positive for State and the reputation of the Indiana judiciary.

  4. During a visit where an informant with police wears audio and video, does the video necessary have to show hand to hand transaction of money and narcotics?

  5. I will agree with that as soon as law schools stop lying to prospective students about salaries and employment opportunities in the legal profession. There is no defense to the fraudulent numbers first year salaries they post to mislead people into going to law school.

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