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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. Thank you, John Smith, for pointing out a needed correction. The article has been revised.

  2. The "National institute for Justice" is an agency for the Dept of Justice. That is not the law firm you are talking about in this article. The "institute for justice" is a public interest law firm. http://ij.org/ thanks for interesting article however

  3. I would like to try to find a lawyer as soon possible I've had my money stolen off of my bank card driver pressed charges and I try to get the information they need it and a Social Security board is just give me a hold up a run around for no reason and now it think it might be too late cuz its been over a year I believe and I can't get the right information they need because they keep giving me the runaroundwhat should I do about that

  4. It is wonderful that Indiana DOC is making some truly admirable and positive changes. People with serious mental illness, intellectual disability or developmental disability will benefit from these changes. It will be much better if people can get some help and resources that promote their health and growth than if they suffer alone. If people experience positive growth or healing of their health issues, they may be less likely to do the things that caused them to come to prison in the first place. This will be of benefit for everyone. I am also so happy that Indiana DOC added correctional personnel and mental health staffing. These are tough issues to work with. There should be adequate staffing in prisons so correctional officers and other staff are able to do the kind of work they really want to do-helping people grow and change-rather than just trying to manage chaos. Correctional officers and other staff deserve this. It would be great to see increased mental health services and services for people with intellectual or developmental disabilities in the community so that fewer people will have to receive help and support in prisons. Community services would like be less expensive, inherently less demeaning and just a whole lot better for everyone.

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