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Post by subzero350 on Apr 17, 2017 14:25:34 GMT -5
As mentioned in the turkey and pheasant license question thread, I bought a house and some farmland in DeKalb county a few months ago. The purchase of this property included an easement in the deed that gives me access to a private pond that is not on or that touches my property (the easement gives me a way to walk from my property to the pond, which is to say the easement touches my property line at one end and the private pond at the other).
What are my usage rights for the easement and the private pond? Can I fish the pond? Can I hunt the easement? Do I need permission to do either from the landowners of the pond or easement?
Pond details: The pond is on two private properties with the property line dividing the pond in half, roughly. Can I fish the entire pond, or only the 1/2 that lies on the property I was granted easement from?
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Post by morrison on Apr 18, 2017 14:54:59 GMT -5
That has to be the most "legal" question I have ever been asked. The standard lawyer answer would be, "that depends." The answer to your question would be based on the actual wording of the easement description. Most easement descriptions will list not only the property description but also the rights established by the easement. Without actually knowing what the deed states, I would not even attempt to answer your question on the fear of giving you inaccurate information.
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Post by morrison on Apr 29, 2017 11:52:23 GMT -5
While I provided advice on how to resolve the issue with your rights as to the easement, I overlooked the second question about the pond.
Indiana statute does not provide a clear answer to this question and when this occurs, the situation is addressed based on case law. I have posted a portion of a court opinion below that specifically states that the property line applies to the water and its use. Let me know if you have any additional questions.
Determinations of riparian rights generally turn upon whether a lake is navigable or nonnavigable. See Bath v. Courts, 459 N.E.2d 72, 75 (Ind. Ct. App. 1984). While Indiana courts have not clearly defined "navigable", the courts have provided some guidelines concerning nonnavigable lakes. A lake is nonnavigable when it is enclosed and bordered by riparian landowners. Id. (citing Stoner v. Rice, 121 Ind. 51, 22 N.E. 968 (1889)).
In the present case, there is no dispute that Dead Lake is nonnavigable. Dead lake is enclosed by the property of two landowners, Berger and the Estes. Upon finding that Dead Lake is nonnavigable, we now determine the appropriate riparian rights.
It is well established that the owner of land, upon which there is located a nonnavigable lake, owns and has the right to control the surface of the lake. Patton Park, Inc. v. Pollak, 115 Ind. App. 32, 40, 55 N.E.2d 328, 331 (1944). When a nonnavigable lake covers the property of more than one landowner, "each owner has the right to the free and unmolested use and control over his portion of the lake bed and water thereunder for boating and fishing." Sanders v. De Rose, 207 Ind. 90, 95, 191 N.E. 331, 333 (1934). As such, the landowner has the right to enjoin others from intruding onto his portion of the lake. Id.
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