DeMayo v. State ex rel. Dept. of Natural Resources, 3-1277A321

• Citation: 394 N.E.2d 258,182 Ind.App. 241
• Decision Date: 27 September 1979
• Docket Number: No. 3-1277A321,3-1277A321
• Parties: Francis M. DeMAYO and Marlen E. DeMayo, Appellants (Defendants Below), v. STATE of Indiana on the relation of the DEPARTMENT OF NATURAL RESOURCES, Appellee (Plaintiff Below).
• Court: Indiana Appellate Court

Page 258

394 N.E.2d 258

182 Ind.App. 241

Francis M. DeMAYO and Marlen E. DeMayo, Appellants (Defendants Below),

v.

STATE of Indiana on the relation of the DEPARTMENT OF

NATURAL RESOURCES, Appellee (Plaintiff Below).

No. 3-1277A321.

Court of Appeals of Indiana, Third District.

Sept. 27, 1979.

Richard C. Ver Wiebe, Ver Wiebe, Snow, Miller & Gray, Fort Wayne, for appellants.

Theodore L. Sendak, Atty. Gen., Kenneth R. Stamm, Deputy Atty. Gen., Indianapolis, for appellee.

HOFFMAN, Judge.

Defendants-appellants Francis and Marlen DeMayo appeal from a prohibitive and mandatory injunction granted to the plaintiff-appellee State of Indiana, Department of Natural Resources. The injunction ordered DeMayos to remove five feet of their patio-seawall construction which was found to encroach upon the legal shoreline of Lake Gage in Steuben County and to restrain from building any construction altering the shoreline until their prior compliance with all applicable statutes.

Three issues are argued upon appeal: whether the State sustained its burden of proving an encroachment; whether injunctive relief was a proper remedy; and whether the court erred in finding that appellants' property does not abut Lake Gage.

The facts relevant to these issues and most favorable to the judgment below are as follows: Appellants purchased property described as Lot No. 6 in Hickory Bluff at Lake Gage on September 13, 1974. They subsequently decided to improve the seawall existing on the property, which had been constructed by a former owner, (Dan Radu), pursuant to a valid permit obtained from the Department of Natural Resources. Appellants intended to construct a seawall and patio of concrete and hired Rex Whitcomb to perform the work. As Whitcomb prepared to pour the platform, Ronald Spade, local conservation officer, asked to see a permit authorizing the work whereupon Whitcomb referred to the permit previously issued to Radu. Work on the project was then halted and Spade informed Mr. DeMayo that it was necessary for him to obtain a permit from the State Department of Natural Resources. DeMayo applied to the department for a permit. As Lake Inspector Glen Lange conducted an investigation of the matter, he determined that the uncompleted structure encroached the water of Lake Gage approximately six feet. Suit was then brought by the Attorney General's Office, pursuant to the authority granted in IC 1971, Title 13, Article 2, Chapters 11 and 14 providing for the preservation of lakes.

Appellants' first contention is that there is insufficient evidence to prove encroachment upon the legal shoreline of Lake Gage, making the trial court's finding contrary to law.

In reviewing a case on appeal this Court considers only that evidence which supports the trial court's conclusions of fact and law, together with all reasonable inferences which may be drawn therefrom. If such evidence is sufficient to support the judgment below it will be affirmed. Knightstown Lake Property v. Big Blue River (1978), Ind.App., 383 N.E.2d 361. In addition, upon appeal this Court may not determine credibility of witnesses or otherwise re-evaluate evidence. Clark Advertising Agcy. v. Avco Broadcasting (1978), Ind.App., 383 N.E.2d 353.

At trial three expert witnesses testified for the State. Robert Stewart from the Water Resources Division of the U.S. Geological Survey Department explained that all lakes in Indiana, including Lake Gage, have a water gauge which reflects the elevation of the lake at any particular time in relation to sea level, from which daily readings are recorded. Based on the data collected about the water level of Lake Gage, the legal shoreline of the lake can be determined at any particular time. Stewart explained that if the gauge level of the lake was high on a particular day as compared with the legally established level, special calculations for the difference would be needed in order to find the legal shoreline. The procedure as described by Stewart is to take an engineer's ruler, walk out into the water and measure down until it registered the difference of the water above the legal water level.

Robert Glazier, head of Lakes and Streams section within the Division of Water for the Department of Natural Resources, testified that he and Glen Lange, Lake Inspector for the Department, investigated the site of the seawall pursuant to the DeMayos' application for a permit. On October 2, 1975, they measured the shoreline of the lake and also measured the patio seawall in relation to the road. At that time the two men made the type of measurements earlier described by Stewart to determine the shoreline of the lake prior to and after construction of the platform. As a result of these measurements a draftsman, under Glazier's supervision, drew up a diagram...