State ex rel. Dept. of Natural Resources v. Mason
| Decision Date | 26 February 1981 |
| Docket Number | No. 3-880A244,3-880A244 |
| Citation | 416 N.E.2d 1312 |
| Parties | STATE of Indiana, on the relation of the DEPARTMENT OF NATURAL RESOURCES, Appellant (Plaintiff Below), v. John C. MASON et al., Appellees (Defendants Below). |
| Court | Indiana Appellate Court |
Linley E. Pearson, Atty. Gen., Michael Schaefer, Asst. Atty. Gen., Indianapolis, for appellant.
Thomas H. Singer, Lysohir & Singer, South Bend, for appellees.
The Department of Natural Resources (Department) appeals the denial of its complaint for injunctive relief against John C. Mason. The Department sought both a prohibitory injunction to prevent alteration of the Lake Wawasee shoreline adjacent to Mason's property and a mandatory injunction to require restoration of the shoreline and lakebed to the natural condition existing prior to Mason's excavation in preparation for constructing a seawall pursuant to a permit for such construction issued by the Department.
On appeal the Department claims two issues are before us for review:
1) In denying the Department's complaint, did the trial court apply the wrong burden of proof in utilizing the "clear and convincing" standard as opposed to the "preponderance of the evidence" standard?
2) Was the trial court's denial of injunctive relief contrary to the evidence in that the Department carried its burden of proof that Mason "radically" departed from the scope of authorized excavation contained in the permit?
For the reasons stated below, we reverse the judgment of the trial court.
On November 22, 1976 Mason filed with the Department his "Application for Approval to Alter Shoreline Bed of a Capital Public Fresh Water Lake." This application sought the Department's permission to construct a seawall on his property adjacent to Lake Wawasee. Pursuant to Ind.Code 13-2-11-2, the Department approved the application on January 14, 1977. Pertinent to this appeal are two provisions in the permit, the first of which authorized Mason to "(c)onstruct a concrete seawall in conformance with (the) attached sketch, ...." The second provision limited the Department's approval "to the description and specifications set forth (in the permit including the attached sketch) and any variation therefrom shall invalidate and render this approval void from date of such variation." The sketch attached to the permit and contained in the record does not indicate that any excavation would occur 15 to 20 feet from the shoreline. Further, neither the permit nor the sketch authorized construction of any boat channel at any distance from the shoreline.
Pursuant to this permit, in September, 1977 Mason began preparing the shoreline and adjacent area for construction of the authorized seawall by excavating a firm base sufficient to support its estimated weight of 240 tons. Mason utilized a dragline allegedly to clear away the necessary amount of silt, clay and muck located next to Mason's property in the lake, effectively creating a boat channel six to seven feet deep in an area 15 to 20 feet from the shoreline.
Mason's excavation activities were observed by Dean Jessup, the Department's property manager for the Tri-County Fish & Game Preserve near Lake Wawasee in Kosciusko County. Specifically, Jessup watched Mason operate a large crane and boom casting a large bucket over the shoreline out into the lake. The bucket disappeared under the water, which was covered with spatterdock or water lilies, and surfaced each time with lake bottom material. The bucket would then swing back over the shoreline and deposit the material on Mason's property. In conducting this dredging operation the crane was on Mason's property approximately ten feet from the shoreline. Rather than dredge parallel to the Based on Jessup's observations, on September 10, 1977, the Department filed a complaint in Kosciusko County seeking a preliminary and permanent injunction 1 preventing Mason from operating any dragline or other device in the water or lakebed of Lake Wawasee. After Mason successfully sought a change of venue to the Elkhart Circuit Court, removed the Elkhart Circuit Judge and had a special judge, Myron J. Hack, appointed, the Department amended its original complaint. This amended complaint adopted the paragraphs contained in the original complaint and sought a prohibitory injunction preventing operation of any dragline or other earth moving equipment in the waters or lakebed as well as a mandatory injunction requiring Mason to restore the lakebed. Ultimately, a trial on this amended complaint was held on January 10, 1980.
shoreline, the bucket was cast perpendicular to the shoreline and dredged approximately 20 feet from the shoreline. At trial Mason admitted operating these dredging activities, but claimed they were authorized by the permit.
At trial the testimony demonstrated that some disruption of the lakebed inevitably accompanied construction of a seawall. To show that Mason exceeded the scope of his permit, the Department through two expert witnesses 2 introduced evidence that the proper method for constructing a seawall utilized a backhoe instead of a dragline. According to this testimony, the former method is the standard excavating method for constructing a seawall since it exerts a downward, positive force, both vertically and horizontally, making a clean, perpendicular cut at the seawall foundation. The dragline method is not a sound engineering technique for excavating the foundation since it is incapable of exerting any downward force once it hits bottom. Rather, the deepest point of a dragline cut is at its point of entry and from that point an arc is made to the exit point. Therefore, it is impossible to have the clean, perpendicular cut necessary for a level foundation. Instead, the sole value in utilizing a dragline was that it would be faster and less expensive than a backhoe in moving a given amount of soil. Additionally, during excavation, Mason's crane was not properly located to excavate the proposed foundation even if a dragline was an acceptable construction method. It was so close to the proposed foundation (only 10 feet from the shoreline) it was not possible from that point to excavate the foundation. Finally, excavating 20 feet from the shoreline did not contribute to the construction of the foundation.
The ultimate results of Mason's excavation activities were the reduction of the lakebed from a depth of two to three feet to six to seven feet for a distance of 20 feet from the shoreline thus creating a boat channel with the accompanying destruction of vegetation in the area. Further, Mason admitted paying persons to kill such vegetation (by spraying) even though this was unnecessary for constructing his seawall. The admitted purpose of destroying the vegetation was to make boat access easier to and from his property, effectively increasing the value of his property.
After hearing the testimony and considering the exhibits submitted at trial, as well as the proposed findings of fact and conclusions of law submitted by both parties, Judge Hack denied the Department's request for prohibitory and mandatory injunctions entering judgment in favor of Mason with costs assessed to the Department. Since neither party requested findings of fact and because Judge Hack felt Ind. Rules of Procedure, Trial 65(D) and, by extension, Ind. Rules of Procedure, T.R. 52 "By way of explanation of its foregoing Judgment, the Court now observes as follows:
required such findings only if an injunction or a temporary restraining order was issued, no findings of fact or conclusions of law were entered. Rather, the judge filed an explanatory memorandum with the judgment, the relevant portion of which stated:
3. It is the opinion of the undersigned that, as announced in a long line of cases, of which Schwartz v. Holycross (1925), 83 Ind.App. 658, (149 N.E. 699), is typical, the governing standard as to burden of proof...
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