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

facebook - twitter on Facebook & Twitter

Indiana State Bar Association

Indianapolis Bar Association

Evansville Bar Association

Allen County Bar Association

Indiana Lawyer on Facebook

facebook
ADVERTISEMENT
Subscribe to Indiana Lawyer
  1. I am compelled to announce that I am not posting under any Smith monikers here. That said, the post below does have a certain ring to it that sounds familiar to me: http://www.catholicnewworld.com/cnwonline/2014/0907/cardinal.aspx

  2. As an adoptive parent, I have to say this situation was as shameful as it gets. While the state government opens its wallet to the Simons and their friends, it denied payments to the most vulnerable in our state. Thanks Mitch!

  3. We as lawyers who have given up the range of First amendment freedom that other people possess, so that we can have a license to practice in the courts of the state and make gobs of money, that we agree to combat the hateful and bigoted discrimination enshrined in the law by democratic majorities, that Law Lord Posner has graciously explained for us....... We must now unhesitatingly condemn the sincerely held religious beliefs of religiously observant Catholics, Muslims, Christians, and Jewish persons alike who yet adhere to Scriptural exhortations concerning sodomites and catamites..... No tolerance will be extended to intolerance, and we must hate the haters most zealously! And in our public explanations of this constitutional garbledygook, when doing the balancing act, we must remember that the state always pushes its finger down on the individualism side of the scale at every turn and at every juncture no matter what the cost to society.....to elevate the values of a minority over the values of the majority is now the defining feature of American "Democracy..." we must remember our role in tricking Americans to think that this is desirable in spite of their own democratically expressed values being trashed. As a secular republic the United States might as well be officially atheist, religious people are now all bigots and will soon be treated with the same contempt that kluckers were in recent times..... The most important thing is that any source of moral authority besides the state be absolutely crushed.

  4. In my recent article in Indiana Lawyer, I noted that grass roots marketing -- reaching out and touching people -- is still one of the best forms of advertising today. It's often forgotten in the midst of all of today's "newer wave" marketing techniques. Shaking hands and kissing babies is what politicians have done for year and it still works. These are perfect examples of building goodwill. Kudos to these firms. Make "grass roots" an essential part of your marketing plan. Jon Quick QPRmarketing.com

  5. Hi, Who can I speak to regarding advertising today? Thanks, Gary

ADVERTISEMENT