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Appeals court orders further proceedings in lake-use flap

May 25, 2018

A dispute over shoreline rights between a property owner and the association that controls access to part of Lake Freeman in Carroll County will go back to the trial court after the Indiana Court of Appeals granted the property partial relief.

Patricia M. Jones was locked out of an area of the shoreline she had improved on Lake Freeman by the Von Hollow Association. Her property of a little more than half an acre does not front on the lake, but she is granted access to the shore through a yearly license issued by the Shafer and Freeman Lakes Environmental Conservation Corp. Von Hollow also is issued a separate license for the same shorefront.

After a lake access dispute arose with neighbors who were members of the Von Hollow Association, the association changed the locks granting shore access in 2015 and didn’t give Jones a key to the property she’d used since 1998.

Jones sued in 2016, seeking a declaratory judgment that she had a prescriptive easement; an injunction preventing Von Hollow from obstructing or interfering with her use of the easements over the Von Hollow property; and a judgment against Von Hollow for trespass. Von Hollow counterclaimed for trespass, and Carroll Circuit Judge Benjamin Diener ruled for Von Hollow on its trespass counterclaim against Jones and denied her other claims.

The Indiana Court of Appeals reversed that decision in part Friday in Patricia M. Jones v. Von Hollow Association, Inc., 08A02-1709-PL-2175. Writing for the panel, Judge Robert Altice reversed the trial court’s finding of criminal trespass against Jones, as well as its order directing the shorefront be licensed jointly to Jones and Von Hollow by the Shafer and Freeman Lakes Environmental Conservation Corp.

“Recognizing the discord that existed between the parties with respect to the (shorefront license) agreements and each party’s rights within the shorefront area, the trial court attempted to mitigate the situation by directing SFLECC to issue the parties joint licenses to use the area. However, SFLECC is not a party to this action,” Altice wrote. “Regardless of its good intentions, the trial court erred by directing SFLECC to issue joint licenses. We reverse the trial court’s judgment in this regard.”

The trial court properly determined that Von Hollow did not commit trespass; “however, its conclusion that Jones committed criminal trespass under Ind. Code § 35-43-2-2 is not supported by the record and is clearly erroneous,” because she had authorization to use the shoreline through her license.

“Because the trial court erred when it determined that Jones committed criminal trespass, it also erred when it concluded that Von Hollow was entitled to costs of the action and reasonable attorney fees under Ind. Code § 34-24-3-1 (pecuniary loss as a result of property offenses),” Altice wrote. “We, therefore, reverse the trial court’s judgment on this issue.”

The panel affirmed, however, that Jones did not establish a prescriptive easement over the property. The court noted such easements are disfavored in Indiana. The matter was remanded for proceedings.

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