Bay Point Properties, L.L.C. v. Northlake Estates Condominium Assn. ( 2009 )

[Cite as Bay Point Properties, L.L.C. v. Northlake Estates Condominium Assn., 183 Ohio App.3d 311,
2009-Ohio-3671.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
LOGAN COUNTY
BAY POINT PROPERTIES, L.L.C.,
APPELLEE, CASE NO. 8-09-09
v.
NORTHLAKE ESTATES
CONDOMINIUM ASSOCIATION,
APPELLANT; OPINION
BAY POINT RESORTS ET AL.,
APPELLEES.
Appeal from Logan County Common Pleas Court
Trial Court No. CV 07 12 0597
Judgment Affirmed
Date of Decision: July 27, 2009
APPEARANCES:
Michael A. Rumer and Victoria U. Maisch, for appellee Bay Point
Properties, L.L.C.
Terrence G. Stolly, for appellant.
Case No. 8-09-09
WILLAMOWSKI, Judge.
{¶1} Defendant-appellant, Northlake Estates Condominium Association,
(“Northlake”) brings this appeal from the judgment of the Court of Common Pleas
of Logan County. The trial court determined following a bench trial that plaintiff-
appellee, Bay Point Properties, L.L.C. (“Bay Point”), had littoral rights to a
channel that has become a part of Indian Lake. For the reasons set forth below,
the judgment is affirmed.
{¶2} On December 19, 2007, Bay Point filed a complaint to quiet title
pursuant to R.C. 5303.01. Bay Point alleged that the location of the exact
boundary between the parties’ adjacent property was disputed. Northlake filed its
answer on February 12, 2008. On January 8, 2009, the parties entered a
stipulation of facts. A bench trial on this issue was held on February 3, 2009. On
March 6, 2009, the trial court entered judgment in favor of Bay Point. Northlake
appeals from this judgment and raises the following assignments of error.
First Assignment of Error
The trial court erred as a matter of law in its interpretation and
application of R.C. 5303.01.
Second Assignment of Error
The trial court erred as a matter of law in not finding that Bay
Point had failed to exhaust its administrative remedies.
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{¶3} In the first assignment of error, Northlake claims that the trial court
erred in applying R.C. 5303.01. The statute states as follows.
An action may be brought by a person in possession of real
property, by himself or tenant, against any person who claims an
interest therein adverse to him, for the purpose of determining such
adverse interest. Such action may be brought also by a person out
of possession, having, or claiming to have, an interest in remainder
or reversion in real property, against any person who claims to have
an interest therein, adverse to him, for the purpose of determining
the interests of the parties therein.
R.C. 5303.01.
{¶4} Northlake argues that the trial court could not enter judgment
pursuant to this statute because there is no dispute as to the legal boundaries of the
property. However, although R.C. 5303.01 would certainly apply to boundary
disputes, that is not the sole purpose of the statute. The statute states that one in
possession of real property may bring an action to quiet title against any party
claiming an interest in the real property that is adverse to the possessor’s interest.
Rhea v. Dick (1878), 34 Ohio St. 420.
{¶5} In this case, Northlake erroneously argues that the statute does not
apply to littoral rights. Littoral rights are defined as the ownership rights of one
whose real property abuts a lake to the use and enjoyment of the water and land
underneath the water. Lemley v. Stevenson (1995), 104 Ohio App.3d 126, 661
N.E.2d 237. This includes the right of access and wharfing out to navigable
waters. State v. Cleveland & Pittsburgh RR. Co. (1916), 94 Ohio St. 61, 113 N.E.
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Case No. 8-09-09
677. The owner of land abutting a waterway owns the accompanying rights
unless they are specifically procured by another person. Portage Cty. Bd. of
Commrs. v. Akron, 109 Ohio St.3d 106, 2006-Ohio-954, 846 N.E.2d 478.1 In
Portage Cty., the Ohio Supreme Court held that although adjacent property
owners have the right to use, not possess, the water, it is still a property right that
may only be terminated by the state through the use of eminent domain. Id. at
¶54. The court also reiterated a prior holding that since riparian rights arise from
ownership of land abutting the water, they are property rights. Id. at ¶56. See
also Mansfield v. Balliett (1902), 65 Ohio St. 451, 63 N.E. 86. Since both riparian
and littoral rights arise from owning real estate abutting water, there is no reason
to hold that littoral rights are not property rights as well. Since R.C. 5303.01
deals with interests adverse to the property owner’s rights, littoral rights, which
arise from the ownership of the property, are subject to an action to quiet title.
{¶6} Here, Northlake did not dispute the legal boundaries of the property
at trial or that a portion of the water in the channel crosses over the mutual
property line onto Bay Point’s property. Northlake did claim that it had exclusive
ownership and control over the water in the channel, including the portion
covering Bay Point’s property. This position is adverse to that of Bay Point.
Thus, Northlake did claim an interest adverse to Bay Point’s property rights as
1
This case is based upon an interpretation of riparian rights rather than littoral rights. However, the
difference between the two is that riparian rights deal with access to river water by owners of property
abutting the river, and littoral rights deal with property abutting a lake.
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Case No. 8-09-09
owners and possessors of the land, and R.C. 5303.01 applies. The trial court did
not err in applying R.C. 5303.01 to this case. The first assignment of error is
overruled.
{¶7} In the second assignment of error, Northlake argues that Bay Point
is not entitled to judgment because it did not exhaust its administrative remedies
by appealing the denial of its requests for permits by the Ohio Department of
Natural Resources (“ODNR”). Northlake claims that this failure deprives the trial
court of subject-matter jurisdiction. This court notes that this argument was not
raised before the trial court until closing arguments.2 “The failure to exhaust
administrative remedies is not a jurisdictional defect but is rather an affirmative
defense, if timely asserted and maintained.” Dworning v. Euclid, 119 Ohio St.3d
83, 2008-Ohio-3318, 892 N.E.2d 420, ¶11. The failure to timely raise and
maintain the defense results in a waiver of the defense. Jones v. Chagrin Falls
(1997), 77 Ohio St.3d 456, 674 N.E.2d 1388. Since Northlake failed to
specifically plead this affirmative defense and did not even mention it at trial until
closing arguments, the defense is waived. Northlake cannot now raise this
defense as grounds for reversing the trial court.
2
Northlake argues that it raised this defense in its answer when it claimed (1) “fails to state a claim upon
which relief can be granted,” (2) “lack of standing,” (3) “waiver,” (4) “estoppel and latches (sic),” and (5)
“failure to comply with statutes, regulations and Local Rules.” However, this argument would require the
court to broadly interpret what Northlake meant and would not provide notice to Bay Point that the
affirmative defense of failure to exhaust administrative remedies was what Northlake meant.
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{¶8} Even if the defense was raised, Northlake has not shown that there
were any administrative remedies available. The only evidence before the trial
court was that both Bay Point and Northlake had filed requests for permits with
ODNR. However, ODNR did not deny the permits. Instead, ODNR refused to
rule on the requests because it was not sure who owned the real property rights.
Thus, there was no adjudication from which to appeal. This left Bay Point with
two choices: (1) file a quiet title action to determine littoral rights or (2) file a
writ of mandamus to force ODNR to adjudicate its request. Either way, Bay Point
had no administrative remedies to exhaust. The second assignment of error is
overruled.
{¶9} The judgment of the Court of Common Pleas of Logan County is
affirmed.
Judgment affirmed.
SHAW, J., concurs.
ROGERS, J., concurs in judgment only.
_________________
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