Maxwell v. Hahn

• Decision Date: 26 May 1987
• Docket Number: No. 43A03-8607-CV-187,43A03-8607-CV-187
• Citation: 508 N.E.2d 555
• Parties: Charles MAXWELL, Ellyn Maxwell, Frank Miotto, Betty Miotto, Victor Maxwell, Vlasta Maxwell, Warner Riley, Bernard L. Thompson, Alethaire Thompson, Florence Duncan, Robert J. Dangler, and Catherine K. Dangler, Appellants (Claimants- Plaintiffs, Third-Party Defendants, and Counter-Claimants Below), v. Roger E. HAHN, Virginia Hahn, Terry M. DeVault, Eleanor G. DeVault, Harry A. Sheetz, Karen Sheetz, Michael Brown, Allen R. Carlson, Earlynn S. Carlson, Ruth Wilcox, Lowell G. Showalter, Cynthia Showalter, Donald H. Beer, Ruth A. Beer, Terry Jodry, Sue Jodry, Wayne Weaver, Ruth V. Weaver, Charlene Kruit, and Roger Sumer, Appellees (Defendants, Third-Party Plaintiffs, and Counter-Defendants Below).
• Court: Indiana Appellate Court

Page 555

508 N.E.2d 555

Charles MAXWELL, Ellyn Maxwell, Frank Miotto, Betty Miotto Victor Maxwell, Vlasta Maxwell, Warner Riley, Bernard L Thompson, Alethaire Thompson, Florence Duncan, Robert J Dangler, and Catherine K. Dangler, Appellants (Claimants- Plaintiffs, Third-Party Defendants, and Counter-Claimants Below), v. Roger E. HAHN, Virginia Hahn, Terry M. DeVault, Eleanor G DeVault, Harry A. Sheetz, Karen Sheetz, Michael Brown, Allen R. Carlson, Earlynn S. Carlson, Ruth Wilcox, Lowell G. Showalter, Cynthia Showalter, Donald H. Beer, Ruth A. Beer, Terry Jodry, Sue Jodry, Wayne Weaver, Ruth V. Weaver, Charlene Kruit, and Roger Sumer, Appellees (Defendants, Third-Party Plaintiffs, and Counter-Defendants Below).

No. 43A03-8607-CV-187.

Court of Appeals of Indiana,

Third District.

May 26, 1987.

Rehearing Denied July 14, 1987.

R. Steven Hearn, Bradley J. Tandy, Rasor, Harris, Lemon & Reed, Warsaw, for appellants.

Richard K. Helm, Brooks C. Pinnick, Rockhill, Pinnick, Pequignot Helm & Landis, Warsaw, for appellees.

HOFFMAN, Judge.

Appellants Charles and Ellyn Maxwell, et al., appeal from the judgment entered against them and in favor of Roger E. Hahn, et al., in the Kosciusko Superior Court.

This appeal arises out of a dispute over the use and ownership of land contiguous to Dewart Lake in Kosciusko County, Indiana. The pertinent facts are undisputed: Prior to October 5, 1945, Willard L. and Helen Redmon, Marion L. and Dottie Redmon, Carl W. and Helen Redmon, Martha A. Redmon and Martha A. Redmon as guardian of Dorothy Redmon, a minor, were the owners of a tract of real estate consisting of approximately 8.5 acres, situated in Kosciusko County, Indiana, the easternmost boundary of which was contiguous to Dewart Lake. The Redmons from this 8.5 acre tract created two subdivisions and, on October 5, 1945, duly executed a plat denominated as "Redmon's Second Addition to Redmon Park," consisting of 6.17 acres of the total 8.5 acres owned by the Redmons. The plat, which was duly recorded in the Office of the Recorder of Kosciusko County, Indiana, on January 8, 1946, provided for the following:

"This addition consists of thirteen lots numbered from one to thirteen inclusively: lots one and thirteen are irregular; lots two to twelve inclusive are each fifty (50) feet wide and one-hundred (100) feet long; lake approaches between lots three and four, seven and eight, and eleven and twelve are each fifteen (15) feet wide. The area between the lake and the lots is common ground for the use of the owners of these lots or future lots that may be laid out west of this addition; however this area between the lake and this addition is not to be subdivided into lots." (Emphasis added.)

The Redmons later platted and recorded the plat of the "Third Addition to Redmon Park," which consisted of 19 lots. The "Third Addition to Redmon Park" lies west of and adjacent to "Redmon's Second Addition to Redmon Park" and is the only property the Redmons laid out west of the Second Addition plat. A map of these additions to Redmon Park as they exist today is as follows:

NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE

The owners of the Third Addition to Redmon Park (appellants) asserted before the trial court their right to use the common ground and the lake approaches, as laid out in the Second Addition to Redmon Park, for their access to Dewart Lake for the general purposes of swimming, fishing and placing piers in the waters of Dewart Lake for the purpose of docking their boats. The owners in the Second Addition (appellees) denied that the Third Addition owners had riparian rights to the common ground and further alleged in defense that they were the fee simple owners of the common ground.

The trial court concluded that the plat proprietors had, while divesting themselves of the title of Lots 1 through 13 to the Second Addition owners, also vested the fee simple title to the common ground and the lake approaches to the Second Addition owners. After thus finding that the fee simple titles of the Second Addition owners included the common ground and the lake approaches, the trial court granted exclusive riparian rights to erect piers or docks on the shores of Dewart Lake to the Second Addition owners and easement rights to swim and fish in Dewart Lake to Third Addition owners. From this judgment the Third Addition owners appeal, alleging that the trial court erred in its finding that the Second Addition owners are the fee simple title holders to the common ground and the lake approaches and thus the trial court incorrectly vested sole riparian rights with the Second Addition owners.

The Second Addition owners contend in their brief of appellees that the Third Addition owners have waived any consideration of the alleged error because the record of proceedings presented to this Court did not include the summary judgment of the trial court, where the trial court concluded that the fee simple title to the lakeshore area was in the lot owners of the Second Addition. This waiver argument fails because Ind. Rules of Procedure, Appellate Rule 7.2(C)(2) specifically states that incompleteness or inadequacy of the record shall...