Gunderson v. State
| Decision Date | 07 December 2016 |
| Docket Number | No. 46A03–1508–PL–1116.,46A03–1508–PL–1116. |
| Citation | 67 N.E.3d 1050 |
| Parties | Don H. GUNDERSON and Bobbie J. Gunderson, Co–Trustees of the Don H. Gunderson Living Trust Dated November 14, 2006, Appellants/Cross–Appellees/Plaintiffs, v. STATE of Indiana, Indiana Department of Natural Resources, Appellees/Defendants, Alliance for the Great Lakes and Save the Dunes, Appellee/Cross–Appellant/Intervenor–Defendant, Long Beach Community Alliance, Patrick Cannon, John Wall, Doria Lemay, Michael Salmon, and Thomas King, Appellees/Cross–Appellants/Intervenor–Defendants. |
| Court | Indiana Appellate Court |
67 N.E.3d 1050
Don H. GUNDERSON and Bobbie J. Gunderson, Co–Trustees of the Don H. Gunderson Living Trust Dated November 14, 2006, Appellants/Cross–Appellees/Plaintiffs,
v.
STATE of Indiana, Indiana Department of Natural Resources, Appellees/Defendants,
Alliance for the Great Lakes and Save the Dunes, Appellee/Cross–Appellant/Intervenor–Defendant,
Long Beach Community Alliance, Patrick Cannon, John Wall, Doria Lemay, Michael Salmon, and Thomas King, Appellees/Cross–Appellants/Intervenor–Defendants.
No. 46A03–1508–PL–1116.
Court of Appeals of Indiana.
Dec. 7, 2016.
Michael V. Knight, Barnes & Thornburg LLP, South Bend, IN, Mark L. Phillips, Newby, Lewis, Kaminski & Jones, LLP, LaPorte, IN, Attorneys for Appellants/Cross–Appellees.
David L. Powers, Smith, Martin, Powers, & Knier, PC, Keith A. Schofner, Lambert Leser, Bay City, MI, Attorneys for Amicus Curiae Save Our Shoreline.
Mark Miller, Pacific Legal Foundation, Palm Beach Gardens, FL, Paul Edgar Harold, LaDue, Curran & Kuehn, LLC, South Bend, IN, Attorneys for Amici Curiae Ray Cahnman, et al.
Gregory F. Zoeller, Attorney General of Indiana, Andrea E. Rahman, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellees.
Jeffrey B. Hyman, Conservation Law Center, Bloomington, IN, Attorney for Appellee/Cross–Appellant, Alliance for the Great Lakes and Save the Dunes.
Kurt R. Earnst, Braje, Nelson & Janes, LLP, Michigan City, IN, Patricia F. Sharkey, Environmental Law Counsel, PC, Chicago, IL, Attorneys for Appellees/Cross–Appellants Long Beach Community Alliance, et al.
MAY, Judge.
[67 N.E.3d 1052
omitted). Today we are called on to decide one such case.
[3] The trial court granted summary judgment for the State and the Intervenors. We affirm in part and reverse in part.
Facts and Procedural History 2
[4] Gunderson owns three lots in Long Beach, Indiana ("Gunderson Property"). The trial court found, "The Gunderson's deed, the plat to which the deed refers, and the survey of the plats reference no northern dimension other than that the lots are within Section 15." (Appellants' App. at 26.) The deed3 for the property incorporates by reference a 1914 plat map of Long Beach, which shows the Gunderson Property is located in Section 15 of the township. The Gunderson Property is shown on the plat as a series of rectangular boxes with a northern boundary. A 1984 survey identifies the northern boundary of the Gunderson Property as "lake edge." (Id. at 127.) A survey from 1829 indicates an irregular property line on the northern border of Section 15, beyond which is labeled, "Lake Michigan." (Id. at 585–7.)
[5] On April 4, 2014, Gunderson brought a motion for a declaratory judgment and to quiet title against the State, claiming he owns all land to the water's edge and the public has no rights to any land not covered by water, as that land is his.4 On June 2, 2014, Alliance–Dunes filed a motion to intervene, which was granted. On July 1, 2014, LBCA filed a motion to intervene; that motion was granted on October 20, 2014.
[6] On October 31, 2014, Gunderson moved for summary judgment. Subsequently, the State filed a cross-motion, as did the Intervenors (collectively "Defendants"). On April 22, 2015, the trial court held a hearing on all motions. On July 24, 2015, the trial court denied Gunderson's summary judgment motion and granted the cross-motions filed by the Defendants.5 It found and concluded:
Therefore, as to ownership, this Court finds that the Gundersons own legal title, jus privatum, in their lots to the northern boundary of Section 15. Further, this Court finds that the State holds jus publicum, in public trust, the land below the OHWM, as defined by 312 Ind. Admin. Code 1–1–26(2). Moreover this Court finds that the Gundersons
[67 N.E.3d 1053
cannot unduly impair the protected rights and uses of the public when the titles to the land overlap.
(Id. at 28.)
[8] On November 9, 2015, Alliance–Dunes filed "Combined Motions to Take Judicial Notice of Facts, to Supplement the Record, and for Leave to Amend Alliance–Dunes' Motion for Clarification and Motion to Correct Error." ("Judicial Notice Motion") (Alliance–Dunes App. at 25.) On November 23, 2015, the trial court issued an order granting Alliance–Dunes Judicial Notice Motion "unless an objection is filed within 10 days from the date of this Order." (Id. at 90.) On November 30, 2015, Gunderson filed an objection, and on December 7, 2015, the State filed its objection to the Alliance–Dunes Judicial Notice Motion. The trial court held a hearing on all pending matters on December 18, 2015, and denied all pending motions on December 21, 2015. Alliance–Dunes appealed the trial court's denial of its Judicial Notice Motion and we consolidated that appeal and the Gunderson Appeal into the current case.
Discussion and Decision
[9] When reviewing summary judgment, we stand in the shoes of the trial court and apply the same standards in deciding whether to affirm the ruling. Allen Gray Ltd. P'ship IV v. Mumford, 44 N.E.3d 1255, 1256 (Ind.Ct.App.2015).
Thus, on appeal, we must determine whether there is a genuine issue of material fact and whether the moving party is entitled to judgment as a matter of law. Id. That standard requires us to construe all factual inferences in favor of the nonmoving party, and to resolve all doubts as to the existence of an issue of material fact against the moving party. Id.[10] A ruling on a motion for summary judgment comes before this court clothed with a presumption of validity. Id. Accordingly, the party appealing a summary judgment bears the burden of persuading us that the trial court's ruling was improper. Id. Nevertheless, we carefully review a decision on summary judgment to ensure that a party was not improperly denied its day in court. Id. Where, as here, the trial court makes findings and conclusions in support of its entry of summary judgment, we are not bound by such findings and conclusions, but they aid our review by providing reasons for the decision. Id. We will affirm a summary judgment on any theory or basis found in the record. Id.
Public Trust Rights
[11] Under English law, all navigable waters and the land beneath them were held in trust by the sovereign for the benefit of the public. Murphy v. Dep't of Nat. Res., 837 F.Supp. 1217, 1219 (S.D.Fla.1993), aff'd, 56 F.3d 1389 (11th Cir.1995). This arrangement has become known as the public trust doctrine, id., and was adopted by the United States Supreme Court, such that "shores" were public trust land:
For it was expressly enjoined upon [the Duke of York], as a duty in the government he was about to establish, to make it, as near as might be, agreeable, in their new circumstances, to the laws and statutes of England; and how could this
[67 N.E.3d 1054
be done, if in the charter itself, this high prerogative trust was severed from the regal authority? If the shores, and rivers and bays and arms of the sea, and the land under them, instead of being held as a public trust for the benefit of the whole community, to be freely used by all for navigation and fishery, as well for shell-fish as floating fish, had been converted by the charter itself into private property, to be parcelled out and sold by the duke, for his own individual emolument? There is nothing, we think, in the terms of the letters-patent, nor in the purposes for which it was granted, that would justify this construction.
Martin v. Waddell's Lessee, 41 U.S. 367, 413, 16 Pet. 367, 10 L.Ed. 997 (1842). This remained true...
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