Daily Development for Thursday, September 30, 1999

By: Patrick A. Randolph, Jr.
Professor of Law
UMKC School of Law
Of Counsel: Blackwell Sanders Peper Martin
Kansas City, Missouri
prandolph@cctr.umkc.edu

EASEMENTS; CREATION; PRESCRIPTION; LAKE SURFACE: Extensive and continuous use of surface of private lake for recreational purposes without express

permission for prescriptive period is *not* sufficient to establish prescriptive easement. No presumption of adversity applies, and use that designedly does not interfere with other lake users may not qualify as "hostile."

Carnahan v. Moriah Property Owners Assoc., Inc., No. 44S03-9909-CV-492 (Indiana 9/27/99)

Claimants over the years bought several lots adjacent to a 22-acre private lake. Eventually, through these acquisitions, they also acquired 2.5 % of the lakebed itself. Through most of the period in question, most of the balance of the lakebed was owned by Drewry.

For a period of time longer than the Indiana ten year prescriptive term, Claimants made extensive recreational use of the entire lake surface, including a variety of motorized vehicles - a houseboat, jet skis and wave runners, and a ski boat. They did so in plain view of the owners of the lakebed over which they were passing.

Then about two thirds of the lakebed was acquired by Association, which established rules for the use of the lake surface above their property. These rules prohibited the use of motorized vehicles other than electric trolling motors.

In response, claimants filed a lawsuit claiming a prescriptive easement. The trial court found that they had established such an easement, and the Indiana Court of Appeals affirmed. On appeal to the Indiana Supreme Court, held: Reversed. No easement, not even a remand. Evidence did not support the trial court's conclusion.

The Supreme Court began with the established principle that in a private, non-navigable lake, the lakebed owners have the right to control the usage of the lake surface overlying their property. This means that, as a beginning point, the association did have the power to control powerboat activity on that portion of the lake where they owned the bed.

Claimants, of course, alleged that their activities, mostly occurring while the prior owner of the association’s portion of the lakebed was in title, established a prescriptive easement. They noted that their activity was relatively continuous, open and notorious, and that there was no evidence of permission. The claimed the benefit of the general rule that open and notorious unpermitted use of the property of another is presumed hostile.

The Supreme Court acknowledged that the presumption of validity would have arisen with this level of use had the issue been the establishment of a right of way over dry land. But it concluded that the issues were different in the case of recreational use in general and in the case of recreational use of a lake in particular. It noted that use of water leaves "no telltale path or road." The court commented that the "widely held view" in Indiana is that if the owner of land "sees his neighbor also making use of it, under circumstances that in no way injures the [land] or interferes with [the landowner's] own use of it, [the neighbor's use] does not justify the inference that he is yielding to his neighbors claim of right or that his neighbor is asserting any right; it signifies only that he is permitting his neighbor to use the [land]."

The court concludes expressly that there will be no presumption of adversity from unpermitted recreational use another's land. The claimant must make a special showing that those activities were in fact adverse. In fact, the court went on to conclude that adversity must be shown by "clear and convincing proof."

The court does not say precisely what types of proof would be necessary to demonstrate "hostility." It dwells on the fact that the claimants apparently took pains to accommodate their own usage to the needs and desires of the other people, notably the other lakebed owner, using the lake. They parked their houseboat in the middle of the lake, so as not to bother persons on the shore, and they did not use their ski boat when others were out on the lake. In fact, they finally terminated their ski boat usage because, in the words of one claimant, they "didn't want to tick off the neighbors."

Comment 1: This case is noteworthy in part because the finding of hostility is mostly a question of fact, and the court here is reversing the trial court on the issue without remanding for further findings.

Comment 2: Normally, actual social "hostility" is not necessary. The idea is that the claim is inconsistent with the exclusive rights of the true owner. The court appears to acknowledge this distinction, but seems to lose sight of it as it catalogues the basis for its conclusion against the claimant's case. Nothing that the claimant did carried any suggestion that it was acknowledging the title or exclusive control of the true owner. Quite the contrary. The fact that it was being a "good neighbor" to the others on the lake should have nothing to do, in a positive or negative way, with the legal "hostility" of its claim.

In short, the editor would be more comfortable if the court had stated simply that some positive evidence of hostility was necessary, and it was not in the record, rather than concluding that the evidence in the record suggested the absence of hostility. The reason that the court didn't do what the editor suggests may be because the court was unwilling to conclude that recreational prescriptive easements can never arise positive evidence of hostility. It just felt that the case had not been made here. Fair enough. But the court's further discussion of the courteous behavior of the claimant simply muddies the waters (ouch!).

Readers are urged to respond, comment, and argue with the daily development or the editor's comments about it.

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