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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. Well, maybe it's because they are unelected, and, they have a tendency to strike down laws by elected officials from all over the country. When you have been taught that "Democracy" is something almost sacred, then, you will have a tendency to frown on such imperious conduct. Lawyers get acculturated in law school into thinking that this is the very essence of high minded government, but to people who are more heavily than King George ever did, they may not like it. Thanks for the information.

  2. I pd for a bankruptcy years ago with Mr Stiles and just this week received a garnishment from my pay! He never filed it even though he told me he would! Don't let this guy practice law ever again!!!

  3. Excellent initiative on the part of the AG. Thankfully someone takes action against predators taking advantage of people who have already been through the wringer. Well done!

  4. Conour will never turn these funds over to his defrauded clients. He tearfully told the court, and his daughters dutifully pledged in interviews, that his first priority is to repay every dime of the money he stole from his clients. Judge Young bought it, much to the chagrin of Conour’s victims. Why would Conour need the $2,262 anyway? Taxpayers are now supporting him, paying for his housing, utilities, food, healthcare, and clothing. If Conour puts the money anywhere but in the restitution fund, he’s proved, once again, what a con artist he continues to be and that he has never had any intention of repaying his clients. Judge Young will be proven wrong... again; Conour has no remorse and the Judge is one of the many conned.

  5. Pass Legislation to require guilty defendants to pay for the costs of lab work, etc as part of court costs...

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