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

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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.


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  1. This new language about a warning has not been discussed at previous meetings. It's not available online. Since it must be made public knowledge before the vote, does anyone know exactly what it says? Further, this proposal was held up for 5 weeks because members Carol and Lucy insisted that all terms used be defined. So now, definitions are unnecessary and have not been inserted? Beyond these requirements, what is the logic behind giving one free pass to discriminators? Is that how laws work - break it once and that's ok? Just don't do it again? Three members of Carmel's council have done just about everything they can think of to prohibit an anti-discrimination ordinance in Carmel, much to Brainard's consternation, I'm told. These three 'want to be so careful' that they have failed to do what at least 13 other communities, including Martinsville, have already done. It's not being careful. It's standing in the way of what 60% of Carmel residents want. It's hurting CArmel in thT businesses have refused to locate because the council has not gotten with the program. And now they want to give discriminatory one free shot to do so. Unacceptable. Once three members leave the council because they lost their races, the Carmel council will have unanimous approval of the ordinance as originally drafted, not with a one free shot to discriminate freebie. That happens in January 2016. Why give a freebie when all we have to do is wait 3 months and get an ordinance with teeth from Day 1? If nothing else, can you please get s copy from Carmel and post it so we can see what else has changed in the proposal?

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