Watson v. Thibodeau, 29A04-8909-CV-411
| Decision Date | 20 September 1990 |
| Docket Number | No. 29A04-8909-CV-411,29A04-8909-CV-411 |
| Citation | 559 N.E.2d 1205 |
| Parties | James WATSON and Viva Watson, Appellants (Defendants Below), v. Michael THIBODEAU and Karen Thibodeau, Appellees (Plaintiffs Below). |
| Court | Indiana Appellate Court |
Viva Watson, Cicero, pro se.
Matthew F. Purol, Greenfield, for appellees.
Defendants-Appellants James and Viva Watson (Watsons), pro se appeal the Hamilton Circuit Court's judgment finding the location of their sailboat cradle in Morse Reservoir to be a nuisance, mandating them to change its location, and awarding Plaintiffs-Appellees Michael and Karen Thibodeau (Thibodeaus) $1,200 in damages.
We affirm in part and reverse in part.
The Watsons present several issues which we restate as follows:
1) whether the Watsons own riparian rights because their property line abuts the shore of Morse Reservoir;
2) whether the constitution and laws of Indiana operate to grant the Watsons the riparian rights specifically withheld from them by the terms under which they purchased their lot from their predecessor in title; and
3) whether the trial court's judgment is sustained by sufficient evidence.
As cross-error, the Thibodeaus assert the trial court erred by not assessing punitive damages in addition to the compensatory damages it awarded, and this is a frivolous appeal which entitles them to recover their appellate attorney fees.
Cicero Shores was developed by the Shorewood Corporation, subject to certain agreements and restrictions between it and Indianapolis Water Company, owner of the water and the land beneath the Reservoir and former owner of the real estate upon which Cicero Shores was developed. Under these agreements, covenants, and deed restrictions, owners of subdivision lots abutting the Reservoir have no riparian or littoral rights therein because all such rights were specifically reserved to Indianapolis Water Company in its deeds of conveyance to Shorewood. Shorewood's Architectural Committee controls the abutting owners' access to the Reservoir and the placing of docks, etc. therein as Indianapolis Water Company's representative.
The Watsons purchased a lot abutting Morse Reservoir in Cicero Shores subdivision in 1978. The Thibodeaus purchased a lot contiguous to the Watsons' in June of 1983, which also abutted the Reservoir.
When the Thibodeaus bought their lot, a boat dock floating in the Reservoir both anchored therein and tied to their seawall was included in the sale. Shortly after the Thibodeaus purchased their property, the Watsons placed a tubular sailboat lift cradle so close to the Thibodeaus' dock they were unable to use one side of it. Later, when the Thibodeaus moved their dock far enough away from the Watsons' sailboat cradle so they could use both sides, the Watsons immediately moved their sailboat cradle toward the relocated dock so as to again obstruct the Thibodeaus' use of one side of it.
Efforts to mediate this impasse over the years through Shorewood's Architectural Committee were to no avail. The Watsons steadfastly refused to move their sailboat cradle.
When the Thibodeaus filed suit for damages and an order of mandate, the Watsons appeared by counsel and filed answer and a counterclaim. After a trial on the counterclaim's merits, the trial court entered judgment against the Watsons for $1,200 damages for maintaining a nuisance and an order mandating them to move their sailboat cradle a minimum of four feet away from the Thibodeaus' dock to give them access to its blocked side. At that point, the Watsons' attorney withdrew his representation because he would be unable to pursue an appeal for them due to other commitments. The Watsons, pro se then filed a motion to correct errors and several extraneous exhibits that should have been offered at trial. When the trial court overruled their motion, the Watsons posted bond and the trial court granted a stay pending this appeal.
The Watsons appeal, pro se. 1
The Watsons first argue they are owners of riparian and littoral rights in Morse Reservoir because their property abuts the shoreline, and they have a right to place their sailboat cradle in the water anywhere within the boundaries of their extended property lines. Having such rights, the trial court erred they contend because it did not decide the case on the basis of extending their property line straight out into the Reservoir, as required by Bath v. Courts (1984), Ind.App., 459 N.E.2d 72. Rather, they claim it erred by angling it into the Reservoir so as to make their dividing line in the water perpendicular to the shoreline but at an obtuse angle to the Watsons' property line.
When Indianapolis Water Company originally conveyed the land subsequently developed as Cicero Shores to Shorewood Corporation on December 30, 1960, the property's riparian and littoral rights to the Reservoir were specifically reserved to the water company. The substance of all these restrictions and reservations is set forth in the following covenant regarding Morse Reservoir:
....
(1) Title in Shorewood to the Morse Reservoir Land shall extend only to the shore line of Morse Reservoir as said shore line would have been established on the date hereof if the water level were at an elevation of 810.0 feet above sea level.... Shorewood shall have no rights of any character with respect to Cicero and Hinkle Creeks, the reservoir, the land thereunder, the water therein, ... and the Morse Reservoir Land shall have no riparian or littoral rights or incidents appurtenant,....
(R. 405).
A riparian owner acquires his rights to the water from his fee title to the shoreland. Bath, 459 N.E.2d at 74; Brown v. Heidersbach (1977), 172 Ind.App. 434, 360 N.E.2d 614, 619. While riparian rights may be transferred by grant and are generally transferred without special mention in the conveyance, they may be specially reserved to the grantor. Riparian rights may be separated from the ownership of the land to which they are appurtenant, either by grant of such rights to another, or by a reservation thereof in the conveyance of the land, as did Indianapolis Water Company here. Williams v. Skyline Development Corp. (1972), 265 Md. 130, 288 A.2d 333, 349; Gilbert v. Eldridge (1891), 47 Minn. 210, 49 N.W. 679, 681; 78 Am.Jur.2d Waters Sec. 277; 2 Tiffany, The Law of Real Property, Sec. 667, pp. 723-724. Thus, none of the parties to this action had riparian or littoral rights to Morse Reservoir because no such rights were conveyed to their predecessor in title Shorewood Corporation. The holding in Bath is premised upon the ownership of riparian rights. The Watsons own none because Shorewood Corporation had none to convey. The Watsons constructively and personally knew that fact because Viva Watson had read and was familiar with these restrictions. She so testified at trial. (R. 656-657). The trial court did not err in determining the Watsons had no riparian or littoral rights in Morse Reservoir.
The Watsons' next contention they have riparian rights in the reservoir through the constitution and laws of this state also is without merit. Their references to Indiana Administrative Code Sections 310 IAC 2-29-1 and 2-2 dealing with speed boat operations and the placing of buoys to mark swimming areas and other zones give them no such rights. IC 14-1-1-1 defines terms used in that chapter, but does not grant the Watsons any rights. IC 14-1-1-30 authorizes the adoption of speed regulations and special use areas on lakes and streams. We note further Section 30's proviso prohibiting rules which prohibit or deprive "owners of land adjoining or abutting upon said lakes ... access, ingress, and egress to said land by means of motorized watercraft" has been meticulously honored by Indianapolis Water Company. It has provided for access by that class of persons by arranging for the reasonable placement of docks and other devices on the Reservoir through its agent for such purposes, Shorewood Corporation and its Architectural Committee, even though property owners in Cicero Shores own no riparian or littoral rights in or to the Reservoir.
IC 13-2-4-5 also is of no comfort to the Watsons. Its provision requiring riparian owners to build and maintain docks, etc. "within their premises" applies only to those owners who in fact own riparian rights. The Watsons do not. The remainder of the Watsons' statutory citations have no application here because the Watsons own no riparian rights, as they well know. We find no error here.
Finally, it is readily apparent the evidence is sufficient to support the trial court's judgment. Cicero Shores' developer Shorewood Corporation has never owned riparian rights to Morse Reservoir and thus, could convey none. Without owning such rights, the Watsons have no standing to complain of the trial court's action. The power of a court to issue a mandatory injunction as a means of enforcing restrictive covenants is well established. Highland v. Williams (1975), 166 Ind.App. 492, 336 N.E.2d 846, 847. We also find no error in this regard.
The matter does not end here, however. As cross-error, the Thibodeaus argue the trial court erred in failing to award them punitive damages and attorney fees. They claim the evidence below was clear and convincing the Watsons were guilty of "intentional, callous, and malicious invasion of Thibodeaus' rights." (Appellees' Brief, p. 30). They assert the Watsons maintained the nuisance for five years and the fair rental value of their property was diminished by $250.00 per month. Thus, they claim, damages should have been assessed at $15,000 rather than the $1,200 awarded by the trial court. Next they posit, they were forced to defend a baseless, frivolous and unreasonable counterclaim and currently are required to defend this appeal which also is frivolous and brought only for purposes of vexation and delay.
We first address the punitive damages issue. We note at the outset, the Thibodeaus' argument...
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