ILNews

First impression case tackles wetlands issue

Back to TopCommentsE-mailPrintBookmark and Share

In a case of first impression, the Indiana Court of Appeals concluded that a landowner who raises the subterranean water table on his land and creates a federally regulated wetland may not invoke the common enemy doctrine of water diversion and be shielded from liability to adjoining landowners whose properties as a result become federally regulated wetlands.

In B & B, LLC v. Lake Erie Land Company, No. 45A04-1002-PL-183, the appellate judges reversed the grant of judgment in favor of Lake Erie Land Company on B&B LLC’s claims against it for trespass, nuisance, and negligence. B&B argued that the defense of the common enemy doctrine wasn’t properly raised and presented at trial by LEL and that the trial court improperly implied it in this case. It also argued the trial court erred in finding LEL didn’t commit trespass as a matter of law and that LEL clearly breached a duty that it owed to B&B.

B&B and LEL purchased portions of land near each other that once were swampy and unusable but became usable after a ditch was built to drain the land. B&B intended to operate a concrete crushing and recycling facility on its land. Just south of this property were two mitigation bank parcels that LEL owned. LEL made modifications to the land to create wetlands, which caused the water table of the land to rise. These modifications caused a wetland to be formed on B&B’s property, leading to the Army Corps of Engineers to order B&B to cease and desist from bringing in any more concrete to the property. That’s when B&B sued LEL for lost profits, clean-up costs, and the lost value of its land.

The Court of Appeals first rejected B&B’s arguments for reversal on the basis that LEL didn’t raise the defense of the common enemy doctrine at trial. B&B offered evidence at trial that related to surface water issues and it failed to object to any pretrial evidence that LEL submitted on those issues. The record demonstrates that the issues relating to the common enemy doctrine and surface waters were tried by the parties’ consent, wrote Judge John Baker.

The judges then analyzed the common enemy doctrine and noted that because the water in question in the case was groundwater, it’s not governed by the common enemy doctrine. They also noted that they were unable to find any cases that cite any authority that allows a party to stop the free flow of subterranean waters in order to raise the water table not only upon its land but on adjoining lands to create a federally regulated wetland.

“In our view, neither the principles applicable to subterranean waters nor the common enemy doctrine would permit a defendant to stop the free flow of underground waters so that adjoining properties become flooded,” wrote Judge Baker.

Also, LEL knew that raising the water table on its land past a certain elevation could potentially flood neighboring properties and that the mitigation bank would likely inundate B&B’s land. As such, LEL undertook a duty and breached that duty by not stopping the propagation of wetland species that culminated in the establishment of wetlands on B&B’s parcel of land. The judges also held that B&B presented evidence of trespass.

The judges reversed the trial court and remanded for further proceedings.

ADVERTISEMENT

Post a comment to this story

COMMENTS POLICY
We reserve the right to remove any post that we feel is obscene, profane, vulgar, racist, sexually explicit, abusive, or hateful.
 
You are legally responsible for what you post and your anonymity is not guaranteed.
 
Posts that insult, defame, threaten, harass or abuse other readers or people mentioned in Indiana Lawyer editorial content are also subject to removal. Please respect the privacy of individuals and refrain from posting personal information.
 
No solicitations, spamming or advertisements are allowed. Readers may post links to other informational websites that are relevant to the topic at hand, but please do not link to objectionable material.
 
We may remove messages that are unrelated to the topic, encourage illegal activity, use all capital letters or are unreadable.
 

Messages that are flagged by readers as objectionable will be reviewed and may or may not be removed. Please do not flag a post simply because you disagree with it.

Sponsored by
ADVERTISEMENT
Subscribe to Indiana Lawyer
  1. What a fine article, thank you! I can testify firsthand and by detailed legal reports (at end of this note) as to the dire consequences of rejecting this truth from the fine article above: "The inclusion and expansion of this right [to jury] in Indiana’s Constitution is a clear reflection of our state’s intention to emphasize the importance of every Hoosier’s right to make their case in front of a jury of their peers." Over $20? Every Hoosier? Well then how about when your very vocation is on the line? How about instead of a jury of peers, one faces a bevy of political appointees, mini-czars, who care less about due process of the law than the real czars did? Instead of trial by jury, trial by ideological ordeal run by Orwellian agents? Well that is built into more than a few administrative law committees of the Ind S.Ct., and it is now being weaponized, as is revealed in articles posted at this ezine, to root out post moderns heresies like refusal to stand and pledge allegiance to all things politically correct. My career was burned at the stake for not so saluting, but I think I was just one of the early logs. Due, at least in part, to the removal of the jury from bar admission and bar discipline cases, many more fires will soon be lit. Perhaps one awaits you, dear heretic? Oh, at that Ind. article 12 plank about a remedy at law for every damage done ... ah, well, the founders evidently meant only for those damages done not by the government itself, rabid statists that they were. (Yes, that was sarcasm.) My written reports available here: Denied petition for cert (this time around): http://tinyurl.com/zdmawmw Denied petition for cert (from the 2009 denial and five year banishment): http://tinyurl.com/zcypybh Related, not written by me: Amicus brief: http://tinyurl.com/hvh7qgp

  2. Justice has finally been served. So glad that Dr. Ley can finally sleep peacefully at night knowing the truth has finally come to the surface.

  3. While this right is guaranteed by our Constitution, it has in recent years been hampered by insurance companies, i.e.; the practice of the plaintiff's own insurance company intervening in an action and filing a lien against any proceeds paid to their insured. In essence, causing an additional financial hurdle for a plaintiff to overcome at trial in terms of overall award. In a very real sense an injured party in exercise of their right to trial by jury may be the only party in a cause that would end up with zero compensation.

  4. Why in the world would someone need a person to correct a transcript when a realtime court reporter could provide them with a transcript (rough draft) immediately?

  5. This article proved very enlightening. Right ahead of sitting the LSAT for the first time, I felt a sense of relief that a score of 141 was admitted to an Indiana Law School and did well under unique circumstances. While my GPA is currently 3.91 I fear standardized testing and hope that I too will get a good enough grade for acceptance here at home. Thanks so much for this informative post.

ADVERTISEMENT