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FOR PUBLICATION
ATTORNEY FOR APPELLANTS: LATRIEALLE WHEAT Angola, Indiana ATTORNEYS FOR APPELLEE CYNTHIA LYNN DUNLAP: TIMOTHY J. ABESKA MICHAEL V. KNIGHT Barnes & Thornburg LLP South Bend, Indiana ATTORNEYS FOR APPELLEES RICHARD G. and MARY E. McCUE: ROBERT T. KEEN, JR. LARRY L. BARNARD Carson Boxberger LLP Fort Wayne, Indiana

IN THE COURT OF APPEALS OF INDIANA
ANDREW PARKISON et al., Appellants-Defendants, vs. RICHARD G. and MARY E. McCUE, Appellees-Plaintiffs, and CYNTHIA LYNN DUNLAP, Appellee-Defendant. ) ) ) ) ) ) ) ) ) )

No. 76A03-0409-CV-408

APPEAL FROM THE STEUBEN SUPERIOR COURT The Honorable William C. Fee, Judge Cause No. 76D01-0009-CP-633

July 13, 2005 OPINION - FOR PUBLICATION BAILEY, Judge

Case Summary Appellants-Defendants Andrew Parkison, et al. (collectively "Parkison") appeal the trial court's order granting summary judgment in favor of Appellee-Defendant Cynthia Lynn Dunlap ("Dunlap"). 1 We affirm. Issues Parkison raises two issues on appeal, which we reorder and restate as the following: 1) Whether the trial court abused its discretion in failing to default Dunlap; and Whether the trial court erred in granting summary judgment in favor of Dunlap because the language of the easement is ambiguous.

2)

Within our analysis of whether summary judgment was appropriate, we address two issues Dunlap raises in her cross-appeal, which we restate as: 1) Whether the trial court erred in finding that the original easement was not extinguished by flooding; and Whether the Robison easement created an additional burden on Dunlap's property. Facts and Procedural History On August 23, 1923, Cyrus and Alice Kint ("the Kints") recorded the plat of Arcadia Beach, located in Steuben County along the shore of Clear Lake. This subdivision lies on the eastern shore of Clear Lake, and consists of approximately thirteen lakefront lots and sixtytwo lots behind the lakefront lots that have no direct access to Clear Lake ("the back lots").

2)

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Richard G. and Mary E. McCue ("the McCues") are listed as Appellants-Defendants in the present action, and filed a brief concurring in the brief of Dunlap. However, we note that the McCues were previously defaulted by the trial court, a decision we affirmed in our memorandum decision, McCue v. Kraus, No. 76A03-0307-CV-247 (May 18, 2004).

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Currently, there are eighteen lots with lakefront access and approximately 83 owners of land in the Arcadia Beach subdivision. The plat of Arcadia Beach included a roadway along the lakefront in front of the lakefront lots, and the boundaries of the lakefront lots extended to the midpoint of the roadway. In recording the Arcadia Beach subdivision, the Kints reserved the portion of land between the roadway and Clear Lake, which "is dedicated for the use of lot owners of Arcadia Beach and all additions." Appellant's App. at 133. This strip of land varied in width from three to twelve feet, as indicated below:

Appellee's Br. at 6. From the time of the original dedication until sometime in the late 1930s, no piers were placed by any owners living in the Arcadia Beach subdivision. On March 11, 1933, the Board of Trustees of the Town of Clear Lake vacated the lakefront roadway, and title to the vacated portion of the roadway between the lakefront lots and the water apparently reverted

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to the Kints. The figure below indicates the section of the roadway vacated by the Town of Clear Lake:

Appellee's Br. at 7. In 1969, Erma Kint, an heir to the Kints, quitclaimed her interest in the vacated roadway, i.e. the property extending from the midpoint of the roadway to Clear Lake, to Harry Robison. Erma reserved an easement for all owners of property in the Arcadia Beach subdivision "to ingress and egress over said property to the waters of Clear Lake and the unrestricted use of said property for recreation purposes." At that time, few owners of Arcadia Beach property placed piers along the easement, and those that did were primarily front lot owners. In 1970, Erma's brother, Vere, quitclaimed his interest in the same property to Robison, but did not include a reservation for the owners of Arcadia Beach. In 1972, Robison quitclaimed his interest in a portion of Lot Number 3 between Clear

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Lake and Lot Number 3's western boundary to John Oberst. 2 Robison reserved an easement for all owners of property in the Arcadia Beach subdivision "to ingress and egress over said property to the waters of Clear Lake and the unrestricted use of said property for recreation purposes." Appellant's App. at 133. The Robison easement is depicted in the following figure:

Appellee's Br. at 9. Recently, conflict has arisen over the appropriate use of the easement when back lot owners began placing piers along the easement. On September 5, 2000, the McCues, owners of one of the lake front lots, filed a complaint for ejectment and trespass against Anthony Kraus ("Kraus"), one of the back lot owners, to remove a pier Kraus had placed on the easement and prevent Kraus from entering onto the McCues' property. The McCues later

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Oberst simultaneously quitclaimed his interest back to Robison. It appears that Robison had title to the vacated roadway, and subdivided the property and transferred title to the lakefront owners adjacent to the respective subdivided tract.

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amended their complaint to include all property owners in the Arcadia Beach subdivision, which included a claim to quiet title. On November 5, 2001, Parkison, a back lot owner, filed his answer, counter-claim, and cross-claim. In 2002, Cynthia Dunlap received a personal representative's deed from Roger Robison, the personal representative of the estate of Herma Robison, Harry Robison's spouse, for the following real estate: Lot Number three (3) and Fourteen (14) in Block 1, Plat of Arcadia Beach at Clear Lake as the same appears on record, in Clear Lake Township, Steuben County, Indiana. Also, Beginning at the Northwest corner of Lot Number three (3) in Section One (1) of Arcadia Beach, Clear Lake Township, Steuben County, Indiana, being and lying in Township 38 North, Range 15 East; running thence West on the extended North line of said Lot Number three (3) to the water of Clear Lake; thence Southerly along the water of Clear Lake to a point where the extended south line of Lot Number three (3) would intersect the water of Clear Lake; thence East on said extended South line to the Southwest corner of said Lot Numbered three (3); thence North across the West end of Lot number (3) to the Place of Beginning. Appellant's App. at 367. Surveys conducted in 2002 and 2003 show that the original beach area between the vacated roadway and Clear Lake is currently underwater. Lot 3 has approximately 43 feet of lake frontage. In October of 2002, Dunlap appeared in the McCues' action and moved to substitute herself as a party in place of Herma Robison. On July 2, 2003, Parkison filed an application for default judgment because neither Herma Robison nor Dunlap had filed an answer to Parkison's cross-claim. Following a hearing, the trial court denied Parkison's motion and granted an extension of time for Dunlap to answer. On August 29, 2003, Dunlap filed an 6

answer and a counter cross-claim and counter-claim against Parkison. Dunlap and Parkison filed motions for summary judgment. On July 2, 2004, after conducting a hearing, the trial court entered the following order: Pending before the Court for decision is the Motion for Partial Summary Judgment on the Counter-Claim and Cross-Claim filed by defendants represented by Latriealle Wheat and defendant Dunlap's Motion for Partial Summary Judgment. Being duly advised, findings are entered that no genuine issue of material fact exists that: 1) Defendant Dunlap owns in fee simple Lots 3 and 14, Block 1, Arcadia Beach Subdivision. Defendant Dunlap's Lots 3 and 14 of Block 1 are not burdened by easements. That defendant Dunlap owns in fee simple that area lying between Lot 3's north and south lot lines extended to Clear Lake. That the aforesaid area is burdened by an easement from three (3) sources: a) b) The Cyrus and Alice Kint plat of Arcadia Beach in 1923; The Erma Kint easement by Quit-Claim Deed to Harry Robison in 1969. The Robison/Oberst easement by Quit-Claim Deed from Harry and Herma L. Robison to John Oberst in 1972.

2)

3)

4)

c)

5)

That the easement created, by whatever source, was not terminated by flooding. That the easement was not terminated by prescription. The scope of the easement conferred whether by plat or by Deed, by its plain language, does not permit the construction of a pier, boatlift or other structure on the easement. Any installation of a pier, boatlift or other structure or the storage of any pier, boatlift or boat, if by a dominant holder of the easement, would be an unlawful expansion of the easement. 7

6) 7)

8) 9)

That the easement is for ingress and egress to the lake. Once at the lake, the easement holders are entitled to use the lake for unrestricted recreational purposes. Recreational purposes, as defined by I.C. [

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