ILNews

Judges split over order property owner pay for construction of drainage-ditch arm

Back to TopCommentsE-mailPrintBookmark and Share

The Indiana Court of Appeals was divided in its ruling on whether a man whose land sits higher and isn’t prone to flooding should have to pay for the reconstruction of an arm of a nearby drainage ditch. The dissenting judge wrote that Wednesday’s decision will promote “water wars” between neighbors.

The Marshall County Drainage Board decided that clay tile arm No. 7 of the Myers Ditch needed reconstruction because several properties located within the watershed complained of flooding and water in basements. A surveyor proposed a new route for the tile be constructed and that the cost of it would be around $114,000, and property owners should be assessed to pay for the construction.

Thomas Crowel, who owned 26 acres of farm land and whose property was at the higher end of the watershed, challenged his $7,000 assessment, claiming he didn’t have flooding problems. He argued that he shouldn’t have to pay for the construction as he would receive no benefit. The surveyor and a drainage board member testified that because his property is higher, surface water runoff from his land contributes to the flooding problems of the lower-lying properties.

The surveyor’s proposed assessment schedule was adopted, and Crowel filed a petition for judicial review, which was denied. The trial court found the board’s decision that Crowel should contribute to the cost of the project was not arbitrary, capricious, or unlawful, and it was supported by substantial evidence.

In Thomas R. Crowel v. Marshall County Drainage Board, No. 50A03-1011-MI-606, Judges Paul Mathias and James Kirsch reversed, citing Hubenthal v. Crain, 239 Ind. 646, 650, 159 N.E.2d 850, 852-53 (1959), in which the Indiana Supreme Court noted that a surveyor must consider the fact that owners of higher land have a right to the natural drainage of their land, language which is corollary to Indiana’s common law “common enemy doctrine” of surface water diversion.

The trial court didn’t consider Crowel’s right to natural drainage of his land, and it concluded that he should have to pay because the natural flow of surface water from his land contributed to the drainage problems of others.

“We must therefore conclude that, as a matter of law, relieving the lower-lying parcels from flooding occasioned by the natural flow of surface water from Crowel’s property does not benefit Crowel’s land and, therefore, cannot form the basis of the reconstruction assessment levied against him. Because the trial court made no findings regarding any other benefit to Crowel’s land, its findings were insufficient to support its judgment,” wrote Judge Mathias.

The majority also noted this case is different than Culbertson v. Knight, 152 Ind. 121, 52 N.E. 700 (1899), because that case involved the collection of water by artificial means.

Judge Nancy Vaidik dissented because she found that Crowel’s land would benefit by reconstructing the drain. She noted that Crowel’s property is in the watershed and his surface water empties into the drain in question. The water must travel through his neighbors’ properties, causing them flooding.

She also wrote that his neighbors on lower-lying land also have the right under the “common enemy doctrine” to dam water or to change the grade of their land to cause water to back up on Crowel’s property.

“Thus, Crowel’s neighbors have the right to engage in a water war to alleviate the flooding problems of their own property. The avoidance of a future water war with his neighbors is also a benefit, albeit an indirect one, to Crowel’s land,” she wrote, explaining that the majority’s opinion changes drainage law, will promote water wars, and undermines the legislative intent of resolving water problems by a common enterprise.

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. The child support award is many times what the custodial parent earns, and exceeds the actual costs of providing for the children's needs. My fiance and I have agreed that if we divorce, that the children will be provided for using a shared checking account like this one(http://www.mediate.com/articles/if_they_can_do_parenting_plans.cfm) to avoid the hidden alimony in Indiana's child support guidelines.

  2. Fiat justitia ruat caelum is a Latin legal phrase, meaning "Let justice be done though the heavens fall." The maxim signifies the belief that justice must be realized regardless of consequences.

  3. Indiana up holds this behavior. the state police know they got it made.

  4. Additional Points: -Civility in the profession: Treating others with respect will not only move others to respect you, it will show a shared respect for the legal system we are all sworn to protect. When attorneys engage in unnecessary personal attacks, they lose the respect and favor of judges, jurors, the person being attacked, and others witnessing or reading the communication. It's not always easy to put anger aside, but if you don't, you will lose respect, credibility, cases, clients & jobs or job opportunities. -Read Rule 22 of the Admission & Discipline Rules. Capture that spirit and apply those principles in your daily work. -Strive to represent clients in a manner that communicates the importance you place on the legal matter you're privileged to handle for them. -There are good lawyers of all ages, but no one is perfect. Older lawyers can learn valuable skills from younger lawyers who tend to be more adept with new technologies that can improve work quality and speed. Older lawyers have already tackled more legal issues and worked through more of the problems encountered when representing clients on various types of legal matters. If there's mutual respect and a willingness to learn from each other, it will help make both attorneys better lawyers. -Erosion of the public trust in lawyers wears down public confidence in the rule of law. Always keep your duty to the profession in mind. -You can learn so much by asking questions & actively listening to instructions and advice from more experienced attorneys, regardless of how many years or decades you've each practiced law. Don't miss out on that chance.

  5. Agreed on 4th Amendment call - that was just bad policing that resulted in dismissal for repeat offender. What kind of parent names their boy "Kriston"?

ADVERTISEMENT