Court dismisses lawsuit over L'Homme Dieu Beach land
It may not be warm enough outside to swim just yet, but when the time comes, residents should be happy to know they can continue swimming at L'Homme Dieu Beach - legally.
The public swimming area is now back in the hands of the state and Douglas County after a lawsuit filed by Dennis Larson was dismissed by Douglas County District Court Judge David Battey.
Larson, a developer from Montevideo, along with his brother, Roger Larson of Alexandria, managed to purchase the lakeshore that includes the public beach area, back in 2005.
Larson filed a lawsuit to try and get sole title to a portion of the land that the L'Homme Dieu swimming beach area is on, but on January 8, Judge Battey threw out the lawsuit and granted a summary judgment in favor of Douglas County and the state.
Douglas County Attorney Chris Karpan said the ruling didn't surprise him. Jason Kuboushek, an attorney from Karpan's office, represented Douglas County in the matter.
In an e-mail response Wednesday afternoon, Karpan said, "I didn't think there was much merit to Mr. Larson's case. Nonetheless, I breathed a huge sigh of relief when I saw the decision.
"We don't have enough public beaches in this county as it is and to lose the public's right to enjoy the L'Homme Dieu beach would have been disastrous," Karpan said.
Larson and his brother, who own and operate Area Lakes Properties, LLC, own about 1,700 feet of L'Homme Dieu lakeshore, starting at Lake L'Homme Dieu Villas and extending 400 feet north of the L'Homme Dieu/Geneva channel.
When the Larsons bought L'Homme Dieu Villas, a land survey of the property showed that the stairway leading to the lake wasn't actually on the property they owned. The stairway was instead located on a triangular piece of property that, since 1956, had a permanent state transportation easement on it.
The Larsons wanted to swap that piece of property for a piece that was the same size and shape directly across from it, which would have straightened out the property line, making it parallel to the shore rather than to the highway.
Judge Battey's judgment noted that the "land swap" was contemplated, but not consummated by the parties involved back in 2005.
Larson's complaint stated that he is the owner of the property, which is subject to an easement acquired by the state in 1966 for purposes of building what is now known as Highway 29. Portions of the land that were subject to the easement, which includes the L'Homme Dieu Beach area, were not immediately used as highway or right-of-way, but were instead used as a rest area and for public recreation purposes.
The county attempted to acquire the fee title to this portion of the land in 1994, and it was eventually granted a limited use permit by the state for public recreation use as a rest area.
Larson, however, needed to relinquish his claim to the land before the state could permanently transfer fee title to the county.
Larson contended that the rest area portion of the land was not being used in accordance with the easement and as such, the state had abandoned its easement and should be stopped from claiming an ongoing easement through its non-use. He wanted the state's easement discharged on the portion of the property that was devoted to pubic recreation.
The state and Douglas County opposed Larson's claim and made a motion for summary judgment.
To show abandonment of public property, Larson had to prove five elements as stated by law. Judge Battey determined that Larson didn't prove any of the elements.
The judgment concluded that because Larson's complaint failed to state a claim upon which relief can be granted, the court granted the county and state's motion for a summary judgment.