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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. Good luck, but as I have documented in three Hail Mary's to the SCOTUS, two applications (2007 & 2013),a civil rights suit and my own kicked-to-the-curb prayer for mandamus. all supported in detailed affidavits with full legal briefing (never considered), the ISC knows that the BLE operates "above the law" (i.e. unconstitutionally) and does not give a damn. In fact, that is how it was designed to control the lawyers. IU Law Prof. Patrick Baude blew the whistle while he was Ind Bar Examiner President back in 1993, even he was shut down. It is a masonic system that blackballs those whom the elite disdain. Here is the basic thrust:https://en.wikipedia.org/wiki/Blackballing When I asked why I was initially denied, the court's foremost jester wrote back that the ten examiners all voted, and I did not gain the needed votes for approval (whatever that is, probably ten) and thus I was not in .. nothing written, no explanation, just go away or appeal ... and if you appeal and disagree with their system .. proof positive you lack character and fitness. It is both arbitrary and capricious by its very design. The Hoosier legal elites are monarchical minded, and rejected me for life for ostensibly failing to sufficiently respect man's law (due to my stated regard for God's law -- which they questioned me on, after remanding me for a psych eval for holding such Higher Law beliefs) while breaking their own rules, breaking federal statutory law, and violating federal and state constitutions and ancient due process standards .. all well documented as they "processed me" over many years.... yes years ... they have few standards that they will not bulldoze to get to the end desired. And the ISC knows this, and they keep it in play. So sad, And the fed courts refuse to do anything, and so the blackballing show goes on ... it is the Indy way. My final experience here: https://www.scribd.com/document/299040062/Brown-ind-Bar-memo-Pet-cert I will open my files to anyone interested in seeing justice dawn over Indy. My cases are an open book, just ask.

  2. Looks like 2017 will be another notable year for these cases. I have a Grandson involved in a CHINS case that should never have been. He and the whole family are being held hostage by CPS and the 'current mood' of the CPS caseworker. If the parents disagree with a decision, they are penalized. I, along with other were posting on Jasper County Online News, but all were quickly warned to remove posts. I totally understand that some children need these services, but in this case, it was mistakes, covered by coorcement of father to sign papers, lies and cover-ups. The most astonishing thing was within 2 weeks of this child being placed with CPS, a private adoption agency was asking questions regarding child's family in the area. I believe a photo that was taken by CPS manager at the very onset during the CHINS co-ocerment and the intent was to make money. I have even been warned not to post or speak to anyone regarding this case. Parents have completed all requirements, met foster parents, get visitation 2 days a week, and still the next court date is all the way out till May 1, which gives them(CPS) plenty of to time make further demands (which I expect) No trust of these 'seasoned' case managers, as I have already learned too much about their dirty little tricks. If they discover that I have posted here, I expect they will not be happy and penalized parents again. Still a Hostage.

  3. They say it was a court error, however they fail to mention A.R. was on the run from the law and was hiding. Thus why she didn't receive anything from her public defender. Step mom is filing again for adoption of the two boys she has raised. A.R. is a criminal with a serious heroin addiction. She filed this appeal MORE than 30 days after the final decision was made from prison. Report all the facts not just some.

  4. Hysteria? Really Ben? Tell the young lady reported on in the link below that worrying about the sexualizing of our children is mere hysteria. Such thinking is common in the Royal Order of Jesters and other running sex vacays in Thailand or Brazil ... like Indy's Jared Fogle. Those tempted to call such concerns mere histronics need to think on this: http://www.msn.com/en-us/news/us/a-12-year-old-girl-live-streamed-her-suicide-it-took-two-weeks-for-facebook-to-take-the-video-down/ar-AAlT8ka?li=AA4ZnC&ocid=spartanntp

  5. This is happening so much. Even in 2016.2017. I hope the father sue for civil rights violation. I hope he sue as more are doing and even without a lawyer as pro-se, he got a good one here. God bless him.

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