Post by Russ Koon on May 23, 2013 11:48:50 GMT -5
OK, this question bugged me and I looked into it further just now.
Apparently established rule in Indiana, which has been cited in suits that got argued all the way to the Indiana Supreme Court, is that on small non-navigable private lakes, the use of the water IS in fact determined by the ownership of the land under it, which DOES follow the property lines just as though it were dry land.
The 1999 decision by the Indiana Supreme Court in the case of Carnahan v. Moriah seems to be the most recent and most definitive ruling.
There were other previous rulings by lower courts in Indiana that differed, including some that supported the principle that I thought still ruled, that recreational use of the surface waters of theentire body was shared by all shoreline owners.
Lots of intertangled legal points involved in the details, and some exceptions under various circumstances such as "adverse" usage, but the gist of it is that the recreational use of each shoreline landowner would be limited to that portion of the lake directly above the portion of the lakebed he has title to.
There still appear to be some exceptions that I couldn't find any legal precedent for. I have seen reference to riparian rights to the use of the surface waters of private lakes being included in the deeds to the property and transferred with those deeds as part of the purchase. This would probably constitute a legal exception, but I couldn't find any example of it being tested in court.
There is also a legal exception in the case of "adversarial easement" which basically means that the use had been previously established over a long period with the "acquiescence" of the majority property owner, but the proofs required for claiming such an exception make it negligible in most cases.
So, it looks like there are still considerably diverse opinions even within legal professionals about the matter, but the prevailing ruling, at least until it gets overturned, sides with the opinion expressed by Morrison on the "ask the CO" forum.
His answers seem to be right pretty often....probably our best source on here for legal answers. I still like to Google up my own sometimes, when the weather's not fit for doing something more fun, and the alternative is to get back to work out in the garage.
My earlier answers do still apply to moving waters and those larger lakes at least partially owned by the public, as near as I could determine.
That's all I'm probably going to dig up on the subject. The Lawnboy in the garage still needs reassembly and I have a dozen new carbons to cut and fletch, and I've about reached my upper tolerance for trying to interpret legalese for awhile.
Sorry to have misled with my previously expressed opinion, which appears to have been wro...., wr...., (still can't say it!)....., "factually incorrect". 8^)
Apparently established rule in Indiana, which has been cited in suits that got argued all the way to the Indiana Supreme Court, is that on small non-navigable private lakes, the use of the water IS in fact determined by the ownership of the land under it, which DOES follow the property lines just as though it were dry land.
The 1999 decision by the Indiana Supreme Court in the case of Carnahan v. Moriah seems to be the most recent and most definitive ruling.
There were other previous rulings by lower courts in Indiana that differed, including some that supported the principle that I thought still ruled, that recreational use of the surface waters of theentire body was shared by all shoreline owners.
Lots of intertangled legal points involved in the details, and some exceptions under various circumstances such as "adverse" usage, but the gist of it is that the recreational use of each shoreline landowner would be limited to that portion of the lake directly above the portion of the lakebed he has title to.
There still appear to be some exceptions that I couldn't find any legal precedent for. I have seen reference to riparian rights to the use of the surface waters of private lakes being included in the deeds to the property and transferred with those deeds as part of the purchase. This would probably constitute a legal exception, but I couldn't find any example of it being tested in court.
There is also a legal exception in the case of "adversarial easement" which basically means that the use had been previously established over a long period with the "acquiescence" of the majority property owner, but the proofs required for claiming such an exception make it negligible in most cases.
So, it looks like there are still considerably diverse opinions even within legal professionals about the matter, but the prevailing ruling, at least until it gets overturned, sides with the opinion expressed by Morrison on the "ask the CO" forum.
His answers seem to be right pretty often....probably our best source on here for legal answers. I still like to Google up my own sometimes, when the weather's not fit for doing something more fun, and the alternative is to get back to work out in the garage.
My earlier answers do still apply to moving waters and those larger lakes at least partially owned by the public, as near as I could determine.
That's all I'm probably going to dig up on the subject. The Lawnboy in the garage still needs reassembly and I have a dozen new carbons to cut and fletch, and I've about reached my upper tolerance for trying to interpret legalese for awhile.
Sorry to have misled with my previously expressed opinion, which appears to have been wro...., wr...., (still can't say it!)....., "factually incorrect". 8^)