STATE OF INDIANA

COUNTY OF LAPORTE

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IN THE LAPORTE SUPERIOR COURT NO. 2

CAUSE NO. 46D02-1404-PL-0606

DON H. GUNDERSON and BOBBIE J.
GUNDERSON, CO-TRUSTEES OF THE
DON H.GUNDERSON LIVING TRUST,
Dated November 14, 2006
Plaintiffs
v.
STATE OF INDIANA AND INDIANA
DEPARTMENT OF NATURAL RESOURCES

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Defendant
AND
ALLIANCE FOR THE GREAT LAKES and SAVE
THE DUNES and LONG BEACH COMMUNITY
ALLIANCE ET AL
Defendant-Intervenors

RESPONSE BRIEF OF
DEFENDANT-INERVENORS
LONG BEACH COMMUNITY ALLIANCE,
PATRICK CANNON, JOHN WALL, DORIA LEMAY,
MICHAEL SALMON AND THOMAS KING

I.

INTRODUCTION

The Plaintiff in this case, Don H. Gunderson and Bobbie J Gunderson, Co-Trustees of the Don
H. Gunderson Living Trust (Gunderson), claims it owns real property stretching from Lake Shore
Drive all the way down to the waters edge of Lake Michigan, wherever that may be at any time.
Gunderson is wrong both legally and factually. Not only are Gundersons facts and interpretations
disputed, they are disputed by a body of law and evidence, including government documents. This
evidence both defeats Gundersons Motion for Summary Judgment and Gundersons case as a whole.
Gunderson rests its Motion for Summary Judgment and its entire case on a deed that on its face
has no dimensions and a Map of Long Beach that on its face that has no dimensions. Gunderson
admits this, but argues that in the absence of any dimensional description of the Lots, the Court should
assume the northern boundary of its Lots extend to the waters edge of Lake Michigan, wherever that
may be at any time.
LBCA disputes Gundersons interpretation of those documents and designates evidence
establishing that: 1) the northern boundary of the Gunderson Lots is not unknown or unknowable, 2)
that boundary likely coincides with, and at least extends no further than, the northern Section Line of
Section 15 in which the Lots are located, 3) the northern Section Line of Section 15 was established in
the original 1829 Federal Land Survey and perpetuated in the Federal Land Patent for the land from
which the Long Beach Addition and Gundersons Warranty Deed are derived, and 4) the location of that
Section line can be located based on notes in the 1829 Federal Land Survey and it is above the ordinary
high water mark (OHWM) of Lake Michigan.

Further evidence designated by LBCA, including LaPorte County tax records and Gundersons
own real estate listing, shows that Gunderson itself has admitted that its Lots have a depth of only 150
feet.
The only additional factual evidence designated by Gunderson is certain 1984 Stop surveys
pertaining to public beach access properties owned by the Town of Long Beach.1 Evidence designated
by LBCA demonstrates that Gunderson misconstrues those Stop surveys and that they do not support
its contention that it owns land stretching from Lake Shore Drive to waters edge of Lake Michigan.
The only facts Gunderson has designated are squarely disputed both legally and factually.
Therefore, Gunderson has failed to carry its burden to present undisputed evidence of its title and its
Motion for Summary Judgment must be denied.
LBCA, herewith, also submits a Cross Motion for Summary Judgment and herein provides a
Argument in support thereof and designates evidence in support thereof. LBCAs Cross Motion moves
the Court to render Summary Judgment in favor of the Defendant and the Defendant- Intervenors based
on the Equal Footings Doctrine and the Public Trust Doctrine and finding that the State of Indiana owns
the lakebed of Lake Michigan up to its OHWM and the State holds that lakebed in an inalienable trust
for the public for all normal and customary beach uses, including recreation. Should the Court find in
favor of Plaintiff on the question of ownership of the land in dispute, LBCA, in the alternative moves the
Court to render Summary Judgment in its favor finding that Long Beach Residents and members of the
public have established a prescriptive easement over the disputed beach area under Indiana law.
The definition of OHWM is established by regulation in Indiana ( 312 IAC 1-1-26) and by a
body of state and federal common law, LBCA has designated photographic and historic evidence,

1

Gunderson also designates as evidence certain webpages and minutes of meetings of state
agencies, a provision of the Indiana Code, and the Order of Judge Alevizos in another
proceeding. These are not factual evidence of Gundersons title to the land in question, the
material fact which Gunderson must prove.

including government tax maps and U.S. Corps of Engineers emergency plans to protect the Long
Beach shoreline, which show the true southern reach of the Lake Michigan lakebed. This evidence
shows the significant impact even a few feet of change in Lake Michigans recorded levels can have on
the size, contours and elevation of the beaches bordering the Town of Long Beach, how far up the beach
the Lake water has stood in recent history, and the impact of high water levels on properties built north
of Lake Shore Drive in the lakebed. This evidence underscores the practical significance of the natural
OHWM in this region given the unique storm surges and constantly shifting beach formations that occur
within the lakebed at the southern tip of Lake Michigan.
Finally, affidavits provided by Long Beach residents and LBCA Members demonstrate the long
and broad historic public use of the unique beaches bordering the Town of Beach. These affidavits
establish the nature and scope of the publics right to use these beaches under the Public Trust Doctrine.
In the alternative, should the Court find that Gunderson owns beach property down to the low water
mark at any given time, these affidavits also state facts which support a finding that Long Beach
residents have established a Prescriptive Easement for their broad scope of open, adverse and historic
use of the Lake Michigan beach lake-ward of the Gunderson house and other lake-side houses.
II.

DESIGNATED EVIDENCE PRECLUDING SUMMARY JUDGMENT FOR

PLAINTIFFS AND SUPORTING SUMMARY JUDGMENT FOR DEFENDANTS
Pursuant to Indiana Trial Rule 56(C), LBCA designates the following twenty-two (22)

exhibits as evidence supporting both its Response to Gundersons Motion for Summary Judgment and
supporting LBCAs Cross-Motion for Summary Judgment in favor of the State of Indiana and the
Defendant- Intervenors, including LBCAs arguments, in the alternative, for Summary Judgment in
favor of LBCA on its prescriptive easement claims.
1.

LBCA Exhibit 1 - 1914 Plat of Long Beach (Map of Long Beach) (including
enlargement of narrative language in Plat); (Also see Plaintiffs Exhibit 1.b.)
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2.

LBCA Exhibit 2 - 1829 Federal Survey of Sections 14, 15, and 22 (including, Section 15
in which the Gunderson Lots are located)

3.

LBCA Exhibit 3- Pages from Surveyors Notes, 1829 Federal Survey of Sections 14, 15,
and 22.

4.

LBCA Exhibit 4 - 1837 U.S. Land Patent to William W. Taylor

5.

LBCA Exhibit 5 U.S. Dept. of the Interior, Bureau of Land Management General
Office Records- Patent Details for 7/5/1837 State Volume Patent to William W. Taylor

6.

LBCA Exhibit 6 - 2003 GIS Photo Shown for La Porte County and Affidavit of
Anthony Hendricks

7.

LBCA Exhibit 7 La Porte County Tax Assessor Records for Gunderson Lots

8.

LBCA Exhibit 8 - Real Estate Advertisement for 2021 Lake Shore Drive, Long Beach
Indiana

9.

LBCA Exhibit 9 - Photo of Survey Stake in Dune Grass on lake-side of Gunderson Lot

10.

LBCA Exhibit 10 Indiana Attorney Generals Opinion, Nov. 22, 1978

11.

LBCA Exhibit 11 Indiana Department of Natural Resources Quasi-Declaratory

Judgment, May 30, 2000.

12.

LBCA Exhibit 12 (A) Photo of Beach and Lake - Summer 2014

LBCA Exhibit 12 (B) Photo of Beach and Lake - Fall 2014

13.

LBCA Exhibit 13 Indiana Tax Assessors Map (revised 1993) Depicting Certain
Lakeshore Drive Lots in Section 15, Including Gunderson Lots

14.

LBCA Exhibit 14 - Long Beach, Indiana Emergency Bank Protection Vicinity,

Locality and General Plan, U.S. Army Engineer District Corps of Engineers, Chicago,
Illinois, Sept. 10, 1973

15.

LBCA Exhibit 15 - Photographs of High and Low Water in Vicinity of Gunderson Lots,
Including Historic 1929-1930 Photos

16.

LBCA Exhibit 16 A - Affidavit of Patrick Cannon (with 2 Photos)

LBCA Exhibit 16 B- Affidavit of Thomas King
LBCA Exhibit 16 C Affidavit of Affidavit of Joy M. Schmitt
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LBCA Exhibit 16 D - Affidavit of Jeff Bartlett

LBCA Exhibit 16 E - Affidavit of William N. Powers
LBCA Exhibit 16 F - Affidavit of Karen Silhavy
LBCA Exhibit 16 G - Affidavit of Jo Ellen Pilecki
LBCA Exhibit 16 H - Affidavit of Margaret O. Allison
LBCA Exhibit 16 I - Affidavit of Joseph and Lenore Jogmen
LBCA Exhibit 16 J - Affidavit of Jane Neulieb
LBCA Exhibit 16 K - Affidavit of James Neulieb
LBCA Exhibit 16 L - Affidavit of Carol Lombard
LBCA Exhibit 16 M - Affidavit of David Hoppe
17.

LBCA Exhibit 17 - Photo of Summer Day at the Beach Depicting Scope of Use

18.

LBCA Exhibit 18 A Examples of South Shore Line Posters Advertising Indiana

Beaches in the 1920s.
LBCA Exhibit 18 B Moonlight in Duneland: Marketing the South Shore Line in the
1920s, Stephen G. McShane.

19.

LBCA Exhibit 19 A Historic Poster Advertising Long Beach As a Resort Community

LBCA Exhibit 19 B Indiana Tourism Bureau Poster Advertising Long Beach

20.

LBCA Exhibit 20 - Photo of Typical Stop Stairway to Beach

21.

LBCA Exhibit 21 - Photo of Town of Long Beach Posted Beach Rules

22.

LBCA Exhibit 22 - Town of Long Beach 2009 Comprehensive Plan

Further specification of the relevant portions of these exhibits, to the extent necessary, is

provided in the Argument Section below.

III.

STANDARD OF REVIEW FOR SUMMARY JUDGMENT

Pursuant to Indiana Trial Rule 56(C), Summary Judgment is granted only when "designated
evidentiary matter shows that there is no genuine issue as to any material fact and that the moving party
is entitled to judgment as a matter of law." Interstate Cold Storaage, Inc. v. General Motors
Corporation, 720 N.E.2d 727 (Ind. Ct. App. 1999)
It is the party moving for summary judgment that bears the burden of making a prima facie
showing that there is no genuine dispute as to any material fact and that he or she is entitled to
judgment as a matter of law. Monroe Guar. Ins. Co. v. Magwerks Corp., 829 N.E.2d 968, 975 (Ind.
2005). To make a prima facie showing, the moving party must specifically designate evidence
supporting its position. Even if the moving party designates undisputed evidence supporting its
position, summary judgment is not appropriate where the record reveals an incorrect application of the
law to the facts. Interstate Cold Storage, p. 730. Only if the moving party meets both of these
requirements does the burden shift to the non-movant to set forth specifically designated facts showing
that there is a genuine issue for trial. Interstate Cold Storage, at p. 727
A genuine issue of material fact exists where facts concerning an issue which would dispose of
the litigation are in dispute or where the undisputed material facts are capable of supporting conflicting
inferences on such an issue. U-Haul Intl, Inc. v. Nulls Mach. and Mfg. Shop, 736 N.E.2d 271, 274
(Ind. Ct. App. 2000) On a Motion for Summary Judgment, all evidence is to be construed and all doubts
are to be resolved in favor of the non-moving party.
U-Haul Intl, Inc., at p. 274.
Under Ind. Trial Rule 56(B), when one party has moved for summary judgment, the court
may grant summary judgment for any other party on the issues raised by the motion.
IV.

ARGUMENT

A.

GUNDERSON HAS FAILED TO MAKE A PRIMA FACIE CASE THAT IT

OWNS THE LAND IN DISPUTE.

1.

ON ITS FACE, GUNDERSONS DEED DOES NOT CONVEY

OWNERSHIP TO THE WATERS EDGE WHEREVER THAT MAY BE.

As a threshold matter in this quiet title action, Gunderson must prove that it holds title to the
property in dispute. Gunderson claims it owns property all the way down to the waters edge of Lake
Michigan, wherever that may be at any time. Therefore, Gunderson bears the burden of proving it holds
title and that that title extends to property all the way to the waters edge, wherever that may be at any
time. In support of its position, Gunderson has designated the following as its prima facie evidence of
title to the land in dispute:
1.

A Warranty Deed (Plaintiffs Exhibit 1-A) [which does not state

dimensions of the property conveyed, but rather references Lots 240, 242
and 244 and 245 of the Long Beach Addition, as shown in the 1914 Map
of Long Beach recorded in the Office of the Recorder of LaPorte County];

2.

The 1914 Map of Long Beach [ referred to by Gunderson as the Long

Beach Addition Plat or Plat] (LBCA Exhibit 1; Plaintiffs Exhibit 1-B);
and

3.

A series of Stop surveys prepared by Charles D. Hendricks for the Town

of Long Beach, including a survey of Stop 22 adjacent to Gunderson Lot
244. (Plaintiffs Exhibit 3 and 3-A).

Gunderson contends that The lots north of the road known as Lake Shore Drive in the Plat have
no northern dimension depicted on the Plat (Plaintiffs Exhibit 1 Complaint, page 2, para. 10) But,
in fact they do. Contrary to Gundersons contention, the Map of Long Beach shows the lots to be
rectangles with four-sides. Further, the Warranty Deed by way of the 1914 Map of Long Beach, to
which it refers, does provide the northern boundary of the Long Beach Addition and all lake-side lots in
the subdivision. The narrative description of the Long Beach subdivision which appears on the face of
1914 Map of Long Beach states that the property shown in the Map is located in Sections 14, 15 and 22
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of (LBCA Exhibit 1; Plaintiffs Exhibit 1-B) Therefore, it is axiomatic that no property falling
outside those Sections is within the Long Beach Addition or was conveyed to any lot purchaser.

As Gunderson states, the court should follow the rules of deed construction in this case. (See
Gunderson Motion for Summary Judgment, p. 5) In doing so, the narrative description of the Long
Beach Addition stated on the face of the Map of Long Beach -- the key piece of evidence of the extent
of Gundersons title-- cannot be ignored. That description of the property is clear and simple it is
located in Section 14, 15, and 22. As Gunderson argues, citing Parkinson v. McCue, 831 N.E.2d 118,
128, (ind. Ct. App. 2005): The object of deed interpretation is to identify and implement the intent of
the parties to the transaction as expressed in the plain language of the deed and such language should
be read in the ordinary and popular sense and a court presumes that the parties intended for every
part of a [document] to have some meaning and we favor a construction that reconciles and harmonizes
the entire [document]. (Gunderson Memorandum of Law in Support of Motion for Declaratory
Summary Judgment, p. 5.)
The Gunderson Lots are located on the northern extreme of the Long Beach Addition and the
northern extreme of Section15. Their north boundary may actually coincide with the north Section Line
of Section 15, but, minimally, the north Section Line of Section 15 is the outer limit of the property
platted by the original subdivision developer and of the title conveyed by Gundersons Warranty Deed.
Further, as is discussed below, where that Section Line is located is well known and readily reproducible
based on survey posts and survey data used by surveyors today and for more than a century.
The northern extreme of Section 15 was established by the original 1829 U.S. Land Survey
which surveyed the boundaries of the State of Indiana. (LBCA Exhibit 2). That original survey also
established the Range, Township, and Sections within the State. That survey shows the dimensions of

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the boundaries of Section 15 in chains and rods. Starting from a southeast corner post, which still
remains in place and is used by surveyors today, those dimensions can be used to calculate the total
acreage surveyed in Section 15 (which totals 127.55 acres) and to locate the Section Lines and the
northern limit of the Gunderson Lots today. The northern boundary was surveyed along the bank of
Lake Michigan. (LBCA Exhibit 3)
A 1837 U.S. Land Patent granted the same 127.55 acres a very specific quantum of land -- in
Section 15 to the original title owner, William W. Taylor. (LBCA Exhibit 4) On its face, the Patent
refers to 127.55 acres within Section 15. The deeds to all Lots depicted in the Map of Long Beach derive
their title from that original Federal Land Survey and this original U.S. Land Patent and therefore
conveyed only property located within those 127.55 acres in Section 15.
A 2003 GIS Photo/ Survey Overlay created by Anthony Hendricks in his capacity as the LaPorte
County Surveyor shows the Section Lines established by the 1829 Survey super-imposed over an aerial
photograph of Sections 14, 15 and 22. (LBCA Exhibit 6 ) As stated in Mr. Hendricks supporting
affidavit ( LBCA Exhibit 5), this Photo/Survey was designed to generally show where the Section Lines
run through the now developed Lots. From this Photo/Survey, it can be seen that Lots lake-ward of Lake
Shore Drive, including the Gunderson Lots, have been developed on property that is lake-ward of the
northern Section lines. In other words, the development exceeds the boundaries of the property
conveyed under the original patent and the Map of Long Beach, from which the Gunderson Warranty
Deed derives, and encroaches on property of the adjacent land owner the State of Indiana.

2.

THE STOP SURVEYS ARE NOT EVIDENCE THAT GUNDERSONS

LOTS EXTEND TO THE WATERS EDGE WHEREVER IT MAY BE AT
ANY MOMENT

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Gunderson relies on certain 1984 surveys (Plaintiffs Exhibit 3) performed by Charles D.

Hendricks2 for the Town of Long Beach as evidence that the Town-owned beach access lots and
adjacent lots have a depth that extends to the waters edge wherever that may be at any moment.
Gunderson Memorandum of Law in Support of Motion for Declaratory Summary Judgment, p. 2.
As an initial matter, Gunderson has provided no evidence that this survey was performed to
delineate the depth of these lots. On its face, these surveys were not intended to do so. They state NO
DIMENSIONS SHOULD BE ASSUMED BY SCALE MEASURMENTS UPON THIS PLAT.
Indeed, no measurements of the depth of the lots are provided. On its face, it appears these surveys were
performed to delineate the location of the access points and any encroachments thereon. In any event,
there is no indication that Charles Hendricks was hired to survey the entire lot or examined title
documents or original 1829 survey from which the Towns title, like Gundersons derived. Accordingly,
Judge Alevizos, in Gunderson et. al v. Town of Long Beach, No. 46C01-1212-PL-1941 (Dec.26, 2013)
(Plaintiffs Exhibit 9-A) found that these same surveys do not delineate the northern boundary of the
[plaintiffs] lots.
Further, Gundersons argument rests on the assumption that the use of term Lake Edge was
intended by the surveyor to mean the location of the water at the moment of the survey or any given
moment in time. But Gunderson has provided no affidavit from the surveyor to support this
interpretation. As such, the term Lake Edge, as used by Charles Hendricks is ambiguous. It could
mean the location of the water on the days of the survey, but it could also mean the OHWM, as defined
by elevation or by physical characteristics observed on the beach. See Wright v. Day, 33 Wis. 260, 264
(Wis. 1983) (equating the terms waters edge and high water mark); Glass v. Goeckel, 703 N.W.2d

2

Charles Hendricks is the father of the current La Porte County Surveyor Anthony Hendricks, whose affidavit is
designated in evidence as LBCA Exhibit 5. Charles Hendricks was the County Serveyor in the 1980s; however,
Charles Hendricks also ran a private surveying company and Gunderson has offered no evidence that the 1984
Stop surveys on which Gunderson relies were created by Charles Hendricks in his capacity as County Surveyor.

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58, 76 (Mich. 2005) (references in other states to waters edge often tie that term to either a high or
low water mark); Matteson v. Batchelder, 32 A.3d 1059, 1064 (Me.2011) (the term shoreline
may refer to either the high-wawter mark or the low-water mark).
Moreover, it is not the job of a surveyor to render a legal opinion on the Towns or anyone elses
title to property and these surveys should not be construed as such.

3.

GUNDERSON HAS ADMITTED THAT IT OWNS NO MORE THAN 150

FEET NORTH OF LAKESHORE DRIVE AND HAS FAILED TO PAY
PROPERTY TAXES ON PROPERTY BEYOND THAT POINT.

Gunderson has acknowledged that its lots have only a 150 foot depth by virtue of only paying
LaPorte County property taxes on Lots of a 150 foot depth. (LBCA Exhibit 7) Furthermore, in 2014,
Gunderson publicly held out in advertisements for the sale of its Lots that those Lots are only 150 feet
deep. ( LBCA Exhibit 8) As can be seen in a photo taken by Patrick Cannon in 2014, a surveyors pinkflagged stake on the Gunderson property, located approximately 150 feet north of Lake Shore Drive is
located in the dune grass behind the Gunderson house on Lot 245 far from the current waters edge of
Lake Michigan. (LBCA Exhibit 9)
By these actions, Gunderson has openly admitted and publicly held out that it does not own and
has no right to convey to any third party any land more than 150 feet north of Lake Shore Drive.
Whether Gunderson actually owns property that extends as far as 150 feet from Lake Shore Drive may
challengeable based on the evidence of the actual location of the northern property line of the land
conveyed under its Warranty Deed and evidence of the natural OHWM; but, furthermore, Gundersons
claim in this case that it owns to the waters edge wherever it may be at any time is undermined by its
own contradictory statements and actions.
These admissions are highly relevant. In State v. Kivett, 228 Ind. 623, 95 N.E.2d 145, 148-149
(Ind. 1950), Kivett owned land adjacent to the White River, a navigable water, and claimed a right to
13

mine sand, gravel, stone and other minerals and substances from the river bed. The Indiana Supreme
Court held that the State of Indiana acquired title to the lakebed upon becoming a state and could not
part with title except by an act of the Legislature. In ruling for the State, the court also found it salient
that Kivett, who had a federal patent for adjacent land, had never received a patent for any of the lands
forming the bed of the White River, and never was assessed, and never paid any taxes upon such land.
Id. at p. 149

4.

AS A MATTER OF LAW, THE FEDERAL LAND PATENT COUND NOT

CONVEY LAND BELOW THE OHWM

As a legal matter, the Federal Land Patent from which Gundersons Warranty Deed derives
could not have conveyed land below the OHWM after Indiana became a state in 1816. The U.S.
Supreme Court in Pollards Lessee, 3 How.212, 11 L.Ed. 565 (1845) ruled on the issue was whether a
federal patent issued after the admission of Alabama to the Union could validly convey lands that had
underlain navigable waters upon Alabamas admission. The Court held: the States title to lands
underlying navigable waters within its boundaries is conferred not by Congress but by the Constitution
itself and, therefore, if the patent purported to convey lands which were part of the tidelands, the
patent would be invalid to that extent since the Federal Government has no power to convey lands which
are rightfully the States under the equal footing doctrine.
Later, in Shively v. Bowlby, 152 U.S. 1 (1894), the Supreme Court made it clear that the federal
government could only patent land above the ordinary high-water mark. Referring to the Oregon
Donation Act, the Court stated:
Grants by Congress of portions of the public lands within a territory to settlers
thereon, though bordering on or bounded by navigable waters, convey, of their
own force, no title or right below high-water mark, and do not impair the title and
dominion of the future state, when created . . . . Id. at 58. [emphasis added]

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Thus, based on Pollards Lessee and Shively alone even without considering the survey
evidence -- it is clear that the 1837 Federal Land Patent from which Gundersons Warranty Deed derives
did not and could not have conveyed any land below the OHWM of Lake Michigan because the federal
government had no authority to do so.

B.

UNDER THE EQUAL FOOTINGS DOCTRINE THE STATE OF

INDIANA OWNS THE LAKEBED OF LAKE MICHIGAN TO THE
ORDINARY HIGH WATER MARK.

Gundersons three astonishingly broad claims in this case -- that it owns the lakebed whenever it
isnt covered by water, it has exclusive right to use the lakebed beach, and the state has no jurisdiction to
regulate its use -- all fly in the face of long and well-established legal principals and should be
dismissed as a matter of law.
1.

THE STATE OWNS AND HOLDS THE LAKEBED OF LAKE

MICHIGAN IN TRUST FOR THE PUBLIC.

Gunderson argues that an Indiana statute articulating public rights as to inland lakes (IC 14-26-21) does not apply to Lake Michigan and therefore no public trust attaches to the beaches of Lake
Michigan. Gunderson Memorandum of Law in Support of Motion for Declaratory Summary Judgment,
p. 14. This argument reveals a fundamental misunderstanding of the relationship between the laws of the
state and federal governments as to navigable waters and the soils beneath them. The public trust which
attaches to the lakebed of Lake Michigan was initially established by federal common law and since
then has been incorporated in state common law as well as state and federal statutes and regulations.
While the state can define the scope and contours of the public trust, it cannot extinguish it particularly
not, as Gunderson contends, by simply excluding it from coverage under a statute intended to address
inland lakes which are not covered under the federal Public Trust Doctrine. See PPL Montana, LLC v.

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Montana, 132 S. Ct. 1215, 1235 (holding the State takes title to the navigable waters and their beds in
trust for the public and no state can make up its own rule for determining navigability for title that
would enlarge what actually passed to the State, at the time of her admission to the Union.); Corvallis
Sand & Gravel, 429 U.S. at 376.(holding the initial boundaries of equal footing riverbeds and lakebeds
and the existence of the public trust imprint, are to be uniformly decided under federal law.)
The historic English common law and subsequent American common law concept that the
federal government first, and then the states, as they became a part of the union,
hold the lakebed of navigable waters and do so, not for their own use or purposes, but in an inalienable
public trust is based on the historic vital interest of the public in these waters and their lakebed. The
leading annunciation of the federal Public Trust Doctrine to this day is Illinois Central Rail. Co. State of
Illinois et al., 146 U.S. 387, 13 S.Ct. 110 (1892), in which the U.S. Supreme Court eloquently described
the vital public interest in the navigable waters of Lake Michigan and its lakebed and ferociously
defended the inalienable and paramount nature of the publics right to use those resources against
actions taken by a major corporation, the City of Chicago and the Illinois General Assembly to privatize
the Chicago lakefront and harbor. The Supreme Court held:
The question, therefore, to be considered, is whether the legislature was
competent to thus deprive the state of its ownership of the submerged lands in the
harbor of Chicago, and of the consequent control of its waters; or, in other words,
whether the railroad corporation can hold the lands and control the waters by the
grant, against any future exercise of power over them by the state.
That the state holds the title to the lands under the navigable waters of Lake
Michigan, within its limits, in the same manner that the state holds title to soils
under tide water, by the common law, we have already shown; It is a title held
in trust for the people of the state, that they may enjoy the navigation of the
waters, carry on commerce over them, and have liberty of fishing therein, freed
from the obstruction or interference of private parties. The trust devolving upon
the state for the public, and which can only be discharged by the management and
control of property in which the public has an interest, cannot be relinquished by a
transfer of the property. The control of the state for the purposes of the trust can
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never be lost, except as to such parcels as are used in promoting the interests of
the public therein, or can be disposed of without any substantial impairment of the
public interest in the lands and waters remaining.The state can no more
abdicate its trust over property in which the whole people are interested, like
navigable waters and soils under them, so as to leave them entirely under the use
and control of private parties, than it can abdicate its police powers in the
administration of government and the preservation of the peace.
Since Illinois Central, a myriad of state and federal cases have confirmed and elaborated
on the federal Public Trust Doctrine. See, for example, Shively v. Bowlby, 152 U.S. 1, 49-50
(1894) ( the navigable waters and soils under them [below the high water mark] shall be held
by the United States in trust for the future states . . . in short, shall not be disposed of piecemeal
to individuals, as private property.). In Lake Sand Co. v. State, 68 Ind. App. 439, 120 N.E.714
(Ind. Ct. App. 1918), the Indiana Appellate Court ascribed to the OHWM as the boundary of the
lakebed, citing a Florida case, Ex parte Powell, 70 Fla. 372, 70 South. 393, holding: Among
the rights thus acquired by the state of Florida is the right to own and hold the lands under
navigable waters within the state, including the shores or space between ordinary high and low
water marks, for the benefit of the people of the state.When the Constitution of the United
States became operative, the several states continued to hold the title to the beds of waters
within respective borders that were navigable in fact without reference to the tides of the sea,
not for purposes of disposition to individual ownerships, but such title was held in trust for all
the people of the states respectively,
Contrary to Gundersons contention, the Indiana Courts have long recognized the States
ownership of the lakebed of all navigable waters within the State of Indiana under federal Equal
Footing Doctrine and have also recognized that the lakebeds of navigable waters are held by the
State in trust for the common benefit of its citizens. As early as 1918, the Indiana Appellate
Court held that the lakebed of Lake Michigan is owned by the State of Indiana and that the State
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is prohibited from alienating the right of all of the people to the lakebed of Lake Michigan. In
Lake Sand Co. v. State, 68 Ind. App. 439, 120 N.E.714 (Ind. Ct. App. 1918), a private Illinois
company claimed a right to mine sand from the Lake Michigan lakebed within the State of
Indiana. This was a claim by a business that it had a non-exclusive right to take materials from
the lakebed, although it conceded the State of Indiana owned the lakebed. The court in Lake
Sand held, citing a number of cases from a number of jurisdictions (U.S. Supreme Court, Ohio,
Illinois, Wisconsin, Florida, and Arkansas), that the resources of the lakebed are owned and
held by the State in trust for the benefit of all the citizens of the state for their common use not
their individual exclusive use. Id. at p. 715-716. The Court also explained that the State in its
sovereign capacity is without power to convey or curtail the right of its people in the bed of
Lake Michigan... Id. at p. 716 This holding was reiterated and elaborated upon by the Indiana
Supreme Court in 1950 in State v. Kivett, 228 Ind. 623, 95 N.E.2d 145, 148 , 95 N.E.2d 145
(Ind. 1950).

2.

THE STATES OWNS AND HOLDS IN TRUST THE LAKEBED OF

LAKE MICHIGAN UP TO THE ORDINARY HIGH WATER MARK

Having established that the State of Indiana owns and holds the lakebed of Indiana in
trust for the benefit of all citizens for their common use, the Court need go no further with this
case. Gunderson cannot as a matter of law own property that lies in the lakebed of Lake
Michigan. But, Gunderson argues that the lakebed is actually only the land under the Lake at
any given moment. This is a totally unsupported interpretation of law and Gunderson has cited
no case supporting its contention. In fact, the U.S. Supreme Court has repeatedly affirmed that
the boundary of state title is determined by the OHWM, not the changing location of the
waters edge at any moment.
18

Following Shively, an over-whelming body of state and federal case law addresses this
question and makes it abundantly clear that the lakebed of a navigable lake transferred to a state
upon admission to the union is encumbered with the public trust that extends to the OHWM.
[cites] The common law establishment of the OHWM as the boundary of a navigable water is
also codified in the 1953 Submerged Land Act, [cite]. State Dept of Natural Res. v. Pankratz,
538 P.2d 984, 988 (Alaska 1975) This large body of case law is thoroughly addressed in the
Response Brief filed in this case by Defendant-Intervenors Alliance for the Great Lakes and
Save The Dunes, and need not be repeated here.
In Indiana, the U.S. District Court for the Northern District of Indiana, in U.S. v.
Carstens, 982 F.Supp.2d 874, 878, 2013 WL 6085970 (N.D. Ind 2013), recently addressed the
question of the boundary of the Lake Michigan lakebed in the Indiana Dunes National Park,
only a few miles from the beaches of Long Beach. The District Court made the following
Finding of Fact:
According to Indiana public trust doctrine, the beach area between the
ordinary high water mark and the edge of the water of Lake Michigan
(the land with the Park boundaries) is public land not owned by any
person, entity, or municipality. Id. at Para. 24.
The District Court then reached the following Conclusions of Law:
The physical limit of federal navigable waterways includes within the
navigable waterways the land below the ordinary high water mark.
(Para. 35) ; and
The land between the edge of the water of Lake Michigan and the
ordinary high water mark is held in public trust by the State of Indiana.
Ill. Cent.R. Co. v. State of Illnois, 146 U.S. 387, 13 S. Ct. 110 (1892);
Lake Sand Co. v. State, 120 N.E. 715 (Ind. 1918).

19

The Indiana Attorney General reached a similar conclusion in an Attorney Generals

Opinion rendered on November 22, 1978. (LBCA Exhibit 10), concluding that the natural
OHWM indicated by physical markings on the shore applies to Lake Michigan, stating:
The lands underlying navigable waters within a State belong to the State in its
sovereign capacity subject to the paramount power of Congress to control such
waters for purposes of navigation. State v. Kivett (1950) 95 N.E. 2d 145. Federal
law defines lands beneath navigable waters as all lands covered by non-tidal
waters up to the ordinary high water mark. 43 USC 1301; U.S. v. Oregon, 295
U.S. 1 (1935); U.S. v. Washington, 294 F.2d 830 (9 Cir. 1961). Physical
markings on the shore indicate the ordinary high water mark of non-tidal waters.
Paine Lumber Co. v. U.S., 55 F 854 (1893); Willis v. U.S., 50 F. Supp. 99 (D.C.
W. Va. 1943); See also Indiana Water Law (1968) by Graham Waite.
Based on the cases cited above, it is my opinion that, in general, the State of
Indiana owns the land lakewards of the ordinary high water mark on the Lake
Michigan shore.
On May 30, 2000, the Indiana Department of Natural Resources (DNR) ruled in a
Quasi-Declaratory Judgment under 312 ICA 3-1-15 on a question presented by Indiana
citizens who were in a dispute with the Northern Indiana Public Service Company (NIPSCO)
concerning use of the Lake Michigan beach bordering the NIPSCO power plant property in
Michigan City for fishing. The DNR Opinion, issued by Director Larry D. Macklin, concluded:
The bed of Lake Michigan below the [Ordinary High Watermark]
within Indianas borders is held in trust for the citizens of IndianaWith
regards to your conflict with the [NIPSCO] concerning access to the
beach which borders their property, as long as you are below the ordinary
high watermark you are on land which is held in trust by the state for its
citizens, or in other words, on public property.My decision is that
[NIPSCO] has no jurisdiction over any exposed beach that is below the
OHW. LBCA Exhibit 11.
Unlike the 1978 Attorney Generals Opinion, the DNR ruling refers to the elevation of
581.5 feet as the ordinary high watermark definition recognized by the U.S. Army Corps of
Engineers and the DNR and refers to DNRs 1995 regulatory definition of ordinary high

20

watermark at 312 IAC 1-1-26. However, that definition actually provides two options for
determining the location of the OHW:
Sec. 26. "Ordinary high watermark" means the following:
(1) The line on the shore of a waterway established by the fluctuations
of water and indicated by physical characteristics. Examples of these
physical characteristics include the following:
(A) A clear and natural line impressed on the bank.
(B) Shelving.
(C) Changes in character of the soil.
(D) The destruction of terrestrial vegetation.
(E) The presence of litter or debris.
(2) Notwithstanding subdivision (1), the shore of Lake Michigan at five
hundred eighty-one and five-tenths (581.5) feet I.G.L.D., 1985 (five
hundred eighty-two and two hundred fifty-two thousandths (582.252) feet
N.G.V.D., 1929).
The first definition may or may not be broader than the fixed elevation established in the
second definition, depending on the water level at any given time. The conditional phrase,
Notwithstanding subdivision 1,, should be read as intending to state an alternative
minimum standard that can readily and consistently be determined at all locations including
those where no physical indications of water fluctuations are present. Under rules of statutory
construction, the second definition cannot be read as displacing, superseding or voiding the first
definition. Indeed, if there are physical indications that the water fluctuations are actually higher
or lower than the fixed elevation, those physical characteristics are indicators of the actual, sitespecific OHWM.
While the fixed elevation may be useful for the Corps of Engineers and DNR
administrative purposes across Lake Michigan, there is good reason to apply the first definition
used by the Attorney General in its 1978 Opinion and referred to as the natural ordinary high
water mark or natural OHWM to questions of public and private ownership of the Lake
21

Michigan lakebed beach in Long Beach. These are beaches where the physical characteristics of
the waters action are readily observable by anyone on the beach. These beaches have
historically and even seasonally experienced dramatic changes in water levels which
demonstrate that the OHWM at this southern tip of the Lake Michigan lakebed at least in
some locations -- is actually quite a bit higher than the 581.5 elevation established by the Corps
of Engineers for the entire Great Lakes system.
For example, 2014 photographs taken by LBCA Members show that within a single
year, the waters edge of the Lake can change from a location over one hundred feet from the
established dune grass behind the Gunderson house to a location just a few feet from that same
dune grass. LBCA Exhibit 2-A and 2-B. That the dune grass grows no lower is a sound
indicator that the OHWM is at least as high as the dune grass behind the Gunderson house. The
line of dune grass all across the Long Beach beaches is a consistent and readily observable
physical demarcation. However, it may not represent the highest water level at which the Lake
has stood even in the recent past. LaPorte County tax maps designated by LBCA shows that, as
recently as 1993, the Lake covered half of the Gundersons 150 foot Lot. (LBCA Exhibit 13)
U.S. Corps of Engineer photos and drawings for an emergency plan to protect the shoreline
show the Lake was even higher in the 1960s and 1970s, held back only by a sea wall at Stop
23 and rip rap designed to protect Lake Shore Drive itself at Stop 31. (LBCA Exhibit 14)
Another historic photograph, found by LBCA Member Patrick Cannon at the Michigan City
Lighthouse Museum shows that in 1929-1930 the Lake sat at the doorstep of homes on the
northside of Lake Shore Drive, likely including the Gunderson house. That photo shows a home
just doors from the Gunderson house which had actually fallen into the Lake. (LBCA Exhibit

22

15) Other photos in that same exhibit show the variance in Lake levels on the beach in the
vicinity of the Gunderson Lots at various times since that early era. (LBCA Exhibit 15)
The significance of this evidence is that it shows the far reach of the true lakebed and
OHWM of Lake Michigan on the Long Beach shore at the southern tip of the Lake. The photo
of Gundersons neighbors house falling into the Lake demonstrates quite impressively what
can and will happen if private parties, such as the Gundersons, succeed in claims that they own
and have an exclusive right to control land within the lakebed. They will construct homes,
decks, driveways, fences, and other appurtenances as many lakefront Long Beach
homeowners have -- oblivious to the location of the lakebed. Indeed, de facto privatization of
the Lake Michigan lakebed has already taken place at many lakefront locations in Long Beach
due to lax definition and enforcement of the OHWM boundary and, as demonstrated by
LBCAs title evidence discussed above, incorrect interpretations of deeds and plats that lead to
encroachment on the lakebed.

2.

THE STATE HAS NOT ALIENATED ANY PART OF THE LAKE

MICHIGAN LAKEBED TO GUNDERSON.

In Kivett, the Indiana Supreme Court explained that under the federal Equal Footings
Doctrine the lakebed of the White River, a navigable water, came into State ownership upon
Indianas admission into the Union in 1816 and that thereafter the State could not part with the
title to such real estate, except by an act of the Legislature. 95 N.E.2d 145, 148.
Gunderson has designated no evidence nor made any claim that the State of Indiana has
by legislation (or in any other fashion) granted to it any part of the Lake Michigan lakebed.

3.

GUNDERSON HAS NOT ACQUIRED TITLE TO THE DISPUTED LAND

BY THE LAW OF ACCRETION AND RELICTION.
23

Gunderson argues that as a matter of law and [sic] any relection [sic] inures to the
benefit of Gunderson. (Gunderson Brief, p. 7). This is incorrect both legally and factually.
As an initial matter, Gunderson has failed to produce any evidence of reliction or
avulsion or accretion for that matter.
Reliction, is defined as:
An increase of the land by the sudden retreat of the sea or lands
arising from the sea and in navigable rivers, (q.v.) generally belong to the
state and all relicted lands of unnavigable rivers generally belong to the
proprietor of the estate to which such rivers act as boundaries.But this
reliction must be from the sea in its usual state for if it should inundate
the land and then recede, this would be no relictionReliction differs
from avulsion, (q.v.) and from alluvion. (q.v.).
A Law Dictionary, Adapted to the Constitution and Laws of the United
States, John Bouvier (1856)
Whether Lake Michigan has retreated or simply lies within different places within its
bed is a question of fact. Avulsion, on the other hand, involves a sudden change in a water
bed or in the course of a stream. West's Encyclopedia of American Law, Edition 2. Gunderson
hasnt demonstrated that Lake Michigans waterbed has changed. Accretion is generally
defined as a gradual accumulation of land by natural causes. (Addition of portions of soil, by
gradual deposition through the operation of natural causes, to that already in possession of the
owner. Blacks Law Dictionary, 4th Ed) Gunderson has provided no evidence of a gradual
build-up of soil on its property. Indeed, there is no evidence that the lake has retreated, grown or
changed its bed or that any land has gradually grown on the Gunderson property. In fact, the
historical evidence designated by LBCA suggests that the Lake is constantly moving within its
lakebed. A explained by the Michigan Supreme Court in Glass v. Goeckel:
[A] term such as, ordinary high water mark attempts to encapsulate the
fact that water levels in the Great Lakes Fluctuate. This fluctuation results
from temporary exposure of the land that may hen remain exposed above
24

the water where water currently lies. This land, although not immediately
and presently submerged, falls with the ambit of the public trust because
the lake has not permanently receded from that point and may yet again
exert its influence up to that point., 703 N.W.2d 53, 71 (2005):
LBCA disputes Gundersons contention that reliction has enlarged its property. But
the burden on this question is not on LBCA or the State. Gundersons failure to designate
evidence supporting its theory of ownership is fatal to its Motion for Summary Judgment on this
theory.
Furthermore, Gundersons contention that its property has grown by virtue of reliction
or avulsion or accretion for that matter ignores the fact that it doesnt own property below the
OHWM both as a matter of the extent of its Warranty Deed and as a matter of law. The
property conveyed under Gundersons Warranty Deed can be no more than that which was
conveyed in the Federal Land Patent from which it derives and that Patent did not, as a matter
of fact, and could not, as a matter of law, convey title below the OHWM. Shively v. v. Bowlby,
152 U.S. 1, 58 (1894) (Grants by Congress of portions of the public lands within a territory to
settlers thereon, though bordering on or bounded by navigable waters, convey, of their own
force, no title or right below high-water mark, and do not impair the title and dominion of the
future state, when created...); Bd. of Park Comr v. Taylor, 108 N.W. 927, 930 (Iowa 1906)
(The title of the riparian owner goes only to the high-water mark)
It is the State of Indiana that owns the lakebed of Lake Michigan and any reliction,
avulsion or accretion that were found to have occurred within that lakebed is the property of the
State, not the upland property owner. U.S. v. Carstens, 982 F.Supp.2d 874, 878, 2013 WL
6085970 (N.D. Ind 2013) (The land between the edge of the water of Lake Michigan and the
ordinary high water mark is held in public trust by the State of Indiana. Citing Ill. Cent.R. Co.

25

v. State of Illnois, 146 U.S. 387, 13 S. Ct. 110 (1892); Lake Sand Co. v. State, 120 N.E. 715
(Ind. 1918).)
In its Brief at p. 10, Gunderson hangs its hat on a misreading of the definition of lands
beneath navigable waters in Section 1301(a) of the Submerged Lands Act and would have this
Court effectively read out of subsection (1) the key reference up to the ordinary high water
mark. Gunderson also disingenuously fails to cite subsections (2) and (3) of Section 1301
which reference permanently or periodically covered tidal waters and filled in, made, or
reclaimed lands which formerly were lands beneath navigable waters. The following is the full
definition:
(a) The term lands beneath navigable waters means
(1) all lands within the boundaries of each of the respective States which
are covered by nontidal waters that were navigable under the laws of the
United States at the time such State became a member of the Union, or
acquired sovereignty over such lands and waters thereafter, up to the
ordinary high water mark as heretofore or hereafter modified by
accretion, erosion, and reliction;
(2) all lands permanently or periodically covered by tidal waters up to but
not above the line of mean high tide and seaward to a line three
geographical miles distant from the coast line of each such State and to
the boundary line of each such State where in any case such boundary as
it existed at the time such State became a member of the Union, or as
heretofore approved by Congress, extends seaward (or into the Gulf of
Mexico) beyond three geographical miles, and
(3) all filled in, made, or reclaimed lands which formerly were lands
beneath navigable waters, as hereinabove defined;..
43 U.S.C. 1301(a) [emphasis added]
A plain reading of subsection (1) and a reading that is consistent with the longestablished law, starting with Shively and most recently pronounced in Glass and Carstens on
Lake Michigan, as well as subsections (2) and (3), is that the OHWM remains the outer boundary

26

of the land beneath navigable waters regardless of whether its location is modified by
accretion, erosion, and reliction. See State of Oregon v. Corvallis Sand & Gravel Co., 582 P.2d
1352, 1361 (Or. 78) ([I]f the line of ordinary high water is the boundary between the bed of a
navigable river, owned by the state, and the privately-owned riparian upland, that boundary will
remain at the line of ordinary high water, although gradual changes in the course of the river or
the contour of the banks may alter the actual location of the high-water line.)
C.

THE SCOPE OF THE PUBLICS RIGHT TO USE THE BEACH IN LONG

BEACH.

1.

THE SCOPE OF PUBIC USES COVERED UNDER THE PUBLIC TRUST

DOCTRINE INCLUDES RECREATIONAL USES

As discussed above, the lakebed of Lake Michigan in dispute in this case is held by the
State of Indiana subject to the federal Public Trust Doctrine. As owner and trustee, the State has
the authority to define what constitutes permissible public use of the lakebed. See PPL Montana,
LLC v. Montana, 132 S. Ct. 1215, 1235 (... [T]he States retain residual power to determine the
scope of the public trust over waters within their borders.)
In Lake Sand Co. v. State, 68 Ind. App. 439, 120 N.E.714 (Ind. Ct. App. 1918) and State
v. Kivet, 228 Ind. 623, 95 N.E.2d 145 (1950), the Indiana Courts, as have other states courts,
drew a firm line against individual members of the public monopolizing or depleting the
resources of the lakebed of a navigable water for their own personal use and profit. The public
trust protects the common use of the lakebed for all members of the public.
However, narrowly defining permissible common uses in which all may partake,
without excluding others, would be inconsistent with the historic use of Indianas Lake Michigan
beaches and with Indianas citizens interest. The publics broad right to use Lake Michigans

27

lakebed for not only navigation, commerce, and fishing, but also for all normal and customary
recreational beach and shore uses, has been an economic driver for Northwest Indiana for
generations. The community of Long Beach is a perfect example of this having been marketed
since the 1920s as a beach resort community. A narrow definition of these uses would be
inconsistent with the unique nature and broad expanse of Northwest Indianas Lake Michigan
beaches which invites a full array of water and beach recreational uses. Not least of all, a narrow
definition would harm property values in Long Beach and defeat the interest of LBCA Members,
as members of public and residents of Long Beach, in fully using, enjoying and preserving these
unique stretches of beach and their beach community homes. See Affidavits of Long Beach
residents in LBCA Exhibits 16-A through 16-N and a photo of a typical summer day at the
beach in Long Beach LBCA Exhibit 17..
A broad interpretation of the public uses encompassed within public trust doctrine is
consistent with common law evolution of the public trust doctrine in the Midwest and across the
country. In Marks v. Whitney, 98 Cal. 790, 491 P.2d 374 (1971), the California Supreme Court
found that while the public trust has traditionally been defined in terms of navigation, commerce
and fisheries, it has also been held to include the right to fish, hunt, bathe, swim, to use for
boating and general recreation purposes the navigable waters of the state, and to use the bottom
of the navigable waters for anchoring, standing, or other purposes. Id. 796
Not surprisingly, the specific types of public use discussed by the courts often reflect
regional interests and activities on the water and beaches.
In Californias Pacific Ocean tidewaters, the California Supreme Court found There is a
growing public recognition that one of the most important public uses of the tidelands--a use
encompassed within the tidelands trust--is the preservation of those lands in their natural state, so

28

that they may serve as ecological units for scientific study, as open space, and as environments
which provide food and habitat for birds and marine life, and which favorably affect the scenery
and climate of the area. Id..
The Wisconsin Supreme Court, not surprisingly adds hunting to the list of public uses,
Although the public trust doctrine originally existed to protect commercial navigation, it has
been expansively interpreted to safeguard the public's use of navigable waters for purely
recreational purposes such as boating, swimming, fishing, hunting, recreation, and to preserve
scenic beauty.
The Minnesota Supreme Court has held that the public uses comprehended by the public
trust on beaches in a Lake Minnetonka beach community include not only navigation by
watercraft for commercial purposes, but the use also for the ordinary purposes of life such as
boating, fowling, skating, bathing, taking water for domestic or agricultural purposes, and cutting
ice. Nelson v. De Long , 213 Minn. 425, 431 , 7 N.W.2d 342 (Minn. 1942)
The Florida Supreme Court found, It is difficult indeed to imagine a general and public
right of fishing in the sea, and from the shore, unaccompanied by a general right to bathe there,
and of access thereto over the foreshore for that purpose. White v. Hughes, 190 So. 446, 449
(Fla.1939).
The Illinois Supreme Court in People v. Chicago Park Dist, 360 NE2d 773 (Ill.1976)
considered the public right to use Lake Michigan beaches along Chicagos lakefront and held the public
uses encompassed by the public trust extend broadly to a broad range of recreational uses.

'We have no difficulty in finding that, in this latter half of the twentieth
century, the public rights in tidal lands are not limited to the ancient
prerogatives of navigation and fishing, but extend as well to recreational
uses, including bathing, swimming and other shore activities. The public
trust doctrine, like all common law principles, should not be considered
fixed or static, but should be molded and extended to meet changing
29

conditions and needs of the public it was created to benefit. Borough of

Neptune City v. Borough of Avon-By-The-Sea (1972) Id. at 780.

2.

THE CURRENT AND HISTORIC USE OF THE LAKE MICHIGAN

BEACHES IN INDIANA DEMONSTRATE THE RECREATIONAL USES
PROTECTED BY THE PUBLIC TRUST DOCTRINE IN INDIANA

Indiana courts have not delineated the scope of the publics right to use the lakebed of
Lake Michigan under the Public Trust Doctrine. The Court should take this opportunity to do so
and should align the scope of Indianas Public Trust Doctrine with modern public uses of Lake
Michigan beaches, with the interests of its citizens, as shown by their broad current and historic
use of these beaches for a multitude of recreational uses, and with the economic interest of the
State of Indiana in preserving the broad expanse of Lake Michigan lakebed within its
boundaries for the common good.
LBCA has designated in evidence the affidavits of fourteen Long Beach Residents
(Long Beach Residents) who do not own property on the north side of Lake Shore Drive, but
who live within walking distance of the beach. LBCA Exhibits 16-A through 16-N. These
affidavits describe in detail the types of uses they and their families and friends make and have
made of the Lake Michigan lakebed beaches bordering the Town of Long Beach for at least
twenty years and in some cases for generations. Those uses include the rich panoply of
traditional beach recreational uses members of the public would be expected to make of a public
beach in close proximity to their home: Swimming; sunbathing; reading; picnics and cookouts
with umbrellas, chairs and tables; family and friend beach days and gatherings; watching the
sunset: building sandcastles: gathering shells and rocks; birthday and graduation celebrations;
attending beach weddings: boating; temporarily anchoring boats: temporarily parking kayaks and
jet skies on the beach; playing beach games, such as catch, touch football and kickball; evening
30

campfires; walking the entire beach from the Michigan City Light House to the Michigan border;
participating in beach clean-up days.
These public beach uses are consistent with the nature of the Lake Michigan beach in
Northwest Indiana. Lake Michigan recreational beach and water activities are the lifeblood of
many communities in Northwest Indiana. The Town of Long Beach was developed as a beach
resort community based on its proximity to the long, unbroken stretch of Lake Michigan shore it
occupies. Public access for use of the Lake Michigan beaches by the entire community was built
into the design of the Map of Long Beach by way of the roadways shown thereon extending
north of Lake Shore Drive toward the Lake. Those roads are the Town-owned Stops that have
been used by generations of Long Beach Residents and other members of the public to access.
LBCA Exhibit 1: Plaintiffs Exhibit 1-B.

Public access to the Lake Michigan beaches both in Long Beach and across northwest
Indiana for recreational activities has been viewed as a tourist attraction going back to the
1920s when Long Beach was first developed. Iconic South Shore Line posters from the 1920s
feature the Lake Michigan beaches and the myriad of recreational uses people were making of
these beaches at that time. They depict swimming, sun bathing, umbrellas, beach gatherings,
bonfires, and pleasure boat racing. These posters were created as advertising intended to lure
Chicagoans to take the South Shore Line to the beautiful beaches of Northwest Indiana and to
buy property in Northwest Indiana. LBCA Exhibit 18-A and 18-B. Similarly, the Indian
Tourist Bureau and the Town of Long Beach itself created posters depicting the recreational
opportunities offered by these beaches. LBCA Exhibits 19-A and 19-B.

31

D.

IN THE ALTERNATIVE, RESIDENTS OF THE TOWN OF LONG

BEACH HAVE ESTABLISHED A PRESCRIPTIVE EASEMENT OVER
THE BEACH UP TO THE ORDINARY HIGH WATER MARK AND IN
SOME INSTANCES BEYOND THE ORDINARY HIGH WATER

LBCA believes Gundersons Summary Judgment Motion and its Complaint, as a whole,
are completely without merit under either the facts or the law and should be summarily denied
and dismissed by this Court without further proceedings. Nonetheless, should the Court find
that Gunderson owns the Lake Michigan beach down to the low water mark or the waters
edge wherever that might be at any moment, LBCA, in the attached Cross Motion for Summary
Judgment, moves the Court to render Summary Judgment in favor of LBCA, finding that
Residents of Long Beach and members of the public have established a prescriptive easement
over such property under Indiana law.
An action to quiet title under Indiana law is intended to allow litigants to settle in one
comprehensive action all conflicting claims to real property. Central Federal Savings & Loan
Assn. v. Cummings, 216 Ind. 636, 25 N.E.2d 638 (1940) Therefore, all questions of title
affecting title, including claims of adverse possession and prescriptive easement, may be
litigated in a quiet title action. Indiana B & W Ry. Co. v. Allen, 113 Ind. 581, 15 N.E. 446
(1888); Danforth v. Meeks, 176 Ind. 400, 96 NE. 153, 154 (1911); Hipes v. Douherty, 176 Ind.
379, 96 N.E. 152 (1911). LBCAs Cross Motion for Summary Judgment on its claim of
prescriptive easement must be resolved here because the Gunderson Compliant in this matter
expressly seeks to exclude all other persons from the beach property in question. Gunderson
Complaint, p. __. Therefore, the question of Long Beach Residents and the publics right to use
such beach under their long-established prescriptive easement are intrinsically at issue here if
the Court rules in favor of Gunderson on its claim of ownership in fee simple.

32

1.

THE ELEMENTS OF PRESCRIPTIVE EASEMENT

UNDER INDIANA LAW

In Fraley v. Minger, 829 N.E.2d 476 (Ind.2005), the Indiana Supreme Court reviewed the
history of the doctrine of adverse possession in Indiana and reformulated the elements necessary
for a person without title to obtain ownership to a parcel of land. It held that the claimant in
such circumstances must establish clear and convincing proof of (1) control, (2) intent, (3)
notice, and (4) duration. Id. 486. Later that same year, the Supreme Court held this
reformulation applies as well for establishing prescriptive easements, save for those differences
required by the differences between fee interests and easements. Wilfong v Cessna Corp, 838
NE2d 403, 406 (Ind. 2005)
a.

CONTROL

Under Fraleys reformulation of the elements of Adverse Possession, the claimant must
exercise the degree of use and control over the parcel that is normal and customary considering
the characteristics of the land (reflecting the former elements of actual, and in some ways
exclusive, possession). This element can be shown by use and control of land for a specific
purpose. Hoose v Doody, 886 NE2d 83, 94 (Ind. Ct App 2008)
Use and control of the Lake Michigan beaches by and for the public has been established
both by Long Beach Residents extensive, open and notorious use of the beach under claim of
right for greater than twenty years and even for generations, as shown by the Long Beach
Residents affidavits designated as evidence in this case. As discussed in Section D above, these
uses involve physically occupying areas of the beach for purposes which are normal and
customary on a beach. While these uses are not exclusive in the sense of permanently
excluding other members of the public or the servient landowner from that portion of the beach
33

so occupied, permanent occupation of a beach should not be found to be required under this
element based on the characteristics of the land and the purpose of the easement. Temporary
occupation of various areas of the beach - by planting umbrellas, setting up chairs and tables,
playing a game of touch football, cook outs and picnicking, parking boats, sunbathing by its
nature is an exercise of control of areas of the beach consistent with normal and customary use of
beach property.
Furthermore, the Long Beach Resident affiants describe participating in beach clean-up
days and helping to construct and maintain beach access areas. LBCA Exhibits 16-A through
16-N. They also describe picking up litter all along the Lake Michigan beach, even in the dune
grass including in beach areas lakeward of the Gunderson Lots and other private owners Lots.
Long Beach Residents, also pay taxes to the Town of Long Beach, some of which are used to
pay for maintenance of beach access areas, known colloquially as Stops, and for policing and
enforcement of Town of Long Beach Beach Rules on the beach.
On behalf of its residents, the Town of Long Beach also exercises control over the Lake
Michigan beach bordering the Town consistent with the public easement held by its residents
thereon. The Town owns and maintains the Stop access properties all along Lake Shore Drive
specifically designed to provide access to the beach by the majority of its residents who cannot
access the beach from their own properties. They are known as Stops due to the fact that the
Town of Long Beach historically operated a shuttle system (trollies) on Lake Shore Drive that
transported residents to these beach access points. The Stops have been improved and are
maintained by the Town and Resident volunteers, and feature stairways and paths that allow
access to the beach without crossing upland homeowners lots. LBCA Exhibit 20. These Stop
access areas are open to all members of the public.

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That the Town of Long Beach, on behalf of its residents, exercises control on the Lake
Michigan Beach consistent with the public easement is further evidenced by Beach Rules it
posts at every stop, prohibiting glass containers, dogs, fireworks, bonfires without a permit and
warning that there are no lifeguards on the beach. LBCA Exhibit 21. The Town also runs a
permitting system for bonfires on the beach. The Town police enforce these rules and patrol the
entire length of the beach during high use periods on all-terrain vehicles including all areas up
to the OHWM. The Town has also adopted Policies for Development of the Lake Michigan
beach in its 2009 Comprehensive Plan recognizing its duty to protect the beach and public access
thereto:
Policy 1 Recognize that the Lake Michigan beach is a publicly owned
natural resource that must be preserved for future generations. Therefore,
no action should be taken that either compromises the environmental
integrity of natural resources or reduces public access. LBCA Exhibit
22.
b.

INTENT

Permission defeats intent, and permission can be implied by a cordial relationship. See
Wilfong, relying on Searcy v. LaGrotte, 175 Ind.App. 498, 372 N.E.2d 755 (1978) (two sisters
owned adjacent land without formal agreement shared drive and sorage area). However, where
there has been use of an easement for 20 years which is unexplained, such use will be presumed
to be under a claim of right, adverse, and sufficient to establish title by prescription unless that
use is contradicted or explained. . . . [A] rebuttable presumption that use is adverse arises under
those circumstances, and in order to rebut that presumption the owner must explain such use by
demonstrating that he merely permitted the claimant to use his land. Chickamauga Properties,
Inc v Barnard, 853 NE2d 148, 153 (Ind. Ct App 2006).
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In Carnahan v Moriah Prop Owners Ass'n, Inc, 716 NE2d 437, 442 (Ind 1999), the
Indiana Supreme Court found that recreational use raises a special question of adversity because
it is often not inconsistent with the servient owners use and therefore must be presumed to
permissive. Therefore, adversity must be demonstrated by clear and convincing evidence. Such
evidence exists in this case.
Adverse use has been defined as a "use of the property as the owner himself would
exercise, disregarding the claims of others entirely, asking permission from no one, and using the
property under a claim of right." Carnahan, Id. p. 442, citing Nowlin v. Whipple, 120 Ind. 596,
598, 22 N.E. 669, 670 (1889).
In the case at hand, the fourteen Long Beach Residents affidavits designated by LBCA
demonstrate by clear and convincing evidence that these residents, their friends and neighbors, as
well as the general public, have used the Lake Michigan beach below the ordinary high water
mark for all beach and water related uses, as any person would, including Gunderson and other
purported owners of such beaches. These uses have included setting up tables and chairs,
planting umbrellas, temporarily parking boats on the beach, playing games, holding family
events such as birthday and graduation parties on the beach, and even holding weddings on the
beach. See LBCA Exhibit 16-A through 16-N.
All of these Long Beach Residents state their belief that they have the right as residents
of Long Beach and members of the public to make such uses of the Lake Michigan Beach,
including the disputed beach lakeward of the Gunderson Lots and other private property owners,
and that they have done so in plain view of the Gunderson house and such other property owners
and have never asked permission. LBCA Exhibits 16-A through 16-N.

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Some of the Long Beach Residents affidavits state that they have seen signs claiming
private property and private beach, but have ignored those signs believing their own use of
the beach was by legal right. LBCA Exhibits 16-A through 16- N. A number of the Long
Beach Resident affiants recite incidents in which they have had verbal disputes with lake side
home owners, including an apparent Gunderson family member, regarding their uses of the
beach. One Long Beach Resident affiant states that in the summer of 2009 he encountered a
make-shift barrier constructed on the beach by the homeowner at 2000 Lakeshore Drive
apparently attempting to exclude others from use of the beach down to the waters edge. The
affiant states :
[A] heated discussion took place between the owners of 2000 Lakeshore
Drive and other residents using the beach in this area. On this date, I
personally verbally confronted the persons who identified themselves as
the owners of the 2000 Lakeshore Dr. property. I told them that at most
their property extended to the vegetation line often referred to as the
Ordinary High Water Mark. They advised me that their relator told them
that they owned to the shoreline. LBCA Exhibit 1, Para. 18.
Notwithstanding the observed postings claiming private property and private beach and
these verbal disputes with Lakeshore Drive homeowners, these Long Beach Resident affiants state that
they continued to use the beach in these locations as they have always done, believing they do so as a
matter of right. LBCA Exhibits ____.
Furthermore, the Long Beach Resident affiants each state that their ability to use the beach in the
manner in which they have is a primary reason that they and their families purchased homes in Long
Beach. LBCA Exhibits 16-A through 16-N. This fact makes it clear that these Long Beach Residents
have always understood their right to use the beach as a personal right and a property right based on the
public nature of the beach as well as their status as Long Beach homeowners and residents.

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c.

NOTICE

Under the Fraley reformulation of the elements of adverse possession, the actions of a
party claiming a prescriptive easement with respect to the land must be sufficient to give actual
or constructive notice to the legal owner of the claimant's intent and exclusive control (reflecting
the former visible, open, notorious, and in some ways the hostile, elements) Ludban v.
Burtch, 951 N.E.2d 846 (Ind. App., 2011)
As shown by the Long Beach Residents affidavits the affiant Long Beach Residents,
their families, friends and neighbors have used the entire Lake Michigan beach north of the
private property lots on Lake Shore Drive, including the Gunderson Lots, openly and in plain
view of the private property owners. LBCA Exhibits 16-A through 16-N. The character of
these residents and the publics use of these beaches, as described in the Long Beach Residents
affidavits and depicted in photographic exhibits, was open and notorious e.g. setting up chairs
and tables, planting umbrellas, picnicking and cook-outs, parking boats, playing touch football,
holding family gatherings and events, and having evening campfires. As such, there can be no
question that private property owners adjacent to the beach were well aware of these public uses
of the beach lake ward of their homes.
d.

DURATION

The Fraley reformulation of the elements necessary to establish a prescriptive easement

did not change the former common law requirement that a party claiming a prescriptive easement
must demonstrate that the elements of a prescriptive easement must be satisfied continuously for
a period of not less than twenty years. Wilfong v. Cessna Corp., 838 N.E.2d 403, 406 (Ind.2005);
Ludban v. Burtch, 951 N.E.2d 846 (Ind. App., 2011)
The evidence designated satisfies this requirement. The Long Beach Residents affidavits
each state that the affiant has personally used the Long Beach Lake Michigan beaches in the
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manner described therein, openly and notoriously and under claim of right, for a wide range of
activities, including the beaches lake-ward of the Gunderson Lot and other private lots, for
greater than twenty years. LBCA Exhibits 16-A Through 16-N. In some instances, the affiants
state that they grew up in Long Beach and that their families have owned homes in Long Beach
and used the beach in the same manner and at the same locations for generations. These
affidavits recite use of the beach on a regular basis in some instances almost every day, others
weekly or bi-weekly. While beach use is most intense in the summer months, many of the
affiants use the beach throughout the year, as weather allows. Furthermore, seasonal use of a
prescriptive easement established for purposes of beach use is consistent with the character and
purpose of the easement and does not constitute abandonment or interruption of that use.
Bromelmeier v. Brookhart, 570 NE2d 90, 92 (Ind Ct App 1991)
(holding mere intermissions in use of reasonable duration do not prevent acquisition of an
easement and abandonment denotes the subjective element of intent as well as mere nonuse.)

2.

THE SCOPE OF THE PRESCRIPTIVE EASEMENT IS

COMMENSURATE WITH THE PURPOSE OF THE EASEMENT

[W]hile enjoyment of an easement will not be extended by implication, The proper

function of a particular easement should be determined by the purpose it is intended to serve.
Bromelmeier v. Brookhart, 570 N.E.90, 92 (Ind. App. Ct. 1991). Also see N.Y.C.R. Co. v.
Yarian, 219 Ind. 447, 39 N.E.2d 604, 606 (1942). In this case, the scope of the public easement
acquired by Long Beach residents and members of the public extends to all of the normal and
customary beach uses that Long Beach Residents have made of the Lake Michigan beach as
shown in the Long Beach Residents Affidavits.

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VI.

CONCLUSION
Based on the facts and law recited above, Gundersons Motion for Summary Judgment

must be denied. Further, the facts and the law in this case so strongly favor the State of Indiana
and the Defendant-Intervenors that the Court should end this litigation and the uncertainty
caused by it by rendering Summary Judgment in favor of the Defendant and Defendant
Intervenors. A trial is unnecessary given the failure of Gundersons Warranty Deed to
demonstrate ownership of the land in dispute, both on a legal and factual basis, and the
overwhelming law confirming State ownership of the lakebed of anavigable water, unless the
State has by act of its legislature divested itself of title. As Indiana has not divested itself of title
to Gunderson, this is an open and shut case.
However, in the alternative, should the Court disagree with LBCA and find that
Gunderson does hold title to the disputed beach below the OHWM, the Court should none the
less grant Summary Judgment for LBCA recognizing the public prescriptive easement over the
disputed beach established by Long Beach Residents long, open, and adverse use of such
beach.
Respectfully submitted,

Patricia F. Sharkey
Environmental Law Counsel, P.C.
Suite 3700
180 North LaSalle Street
Chicago, Illinois 60601
312.981.0404
psharkey@environmentallawcounsel.com
ROA #. 4767-95-TA

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WORD COUNT CERTIFICATION

I verify that this memorandum contains no more than 14,000 words.

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