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First impression case tackles wetlands issue

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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.

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  1. Hail to our Constitutional Law Expert in the Executive Office! “What you’re not paying attention to is the fact that I just took an action to change the law,” Obama said.

  2. What is this, the Ind Supreme Court thinking that there is a separation of powers and limited enumerated powers as delegated by a dusty old document? Such eighteen century thinking, so rare and unwanted by the elites in this modern age. Dictate to us, dictate over us, the massess are chanting! George Soros agrees. Time to change with times Ind Supreme Court, says all President Snows. Rule by executive decree is the new black.

  3. I made the same argument before a commission of the Indiana Supreme Court and then to the fedeal district and federal appellate courts. Fell flat. So very glad to read that some judges still beleive that evidentiary foundations matter.

  4. KUDOS to the Indiana Supreme Court for realizing that some bureacracies need to go to the stake. Recall what RWR said: "No government ever voluntarily reduces itself in size. Government programs, once launched, never disappear. Actually, a government bureau is the nearest thing to eternal life we'll ever see on this earth!" NOW ... what next to this rare and inspiring chopping block? Well, the Commission on Gender and Race (but not religion!?!) is way overdue. And some other Board's could be cut with a positive for State and the reputation of the Indiana judiciary.

  5. During a visit where an informant with police wears audio and video, does the video necessary have to show hand to hand transaction of money and narcotics?

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