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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. by the time anybody gets to such files they will probably have been totally vacuumed anyways. they're pros at this at universities. anything to protect their incomes. Still, a laudable attempt. Let's go for throat though: how about the idea of unionizing football college football players so they can get a fair shake for their work? then if one of the players is a pain in the neck cut them loose instead of protecting them. if that kills the big programs, great, what do they have to do with learning anyways? nada. just another way for universities to rake in the billions even as they skate from paying taxes with their bogus "nonprofit" status.

  2. Um the affidavit from the lawyer is admissible, competent evidence of reasonableness itself. And anybody who had done law work in small claims court would not have blinked at that modest fee. Where do judges come up with this stuff? Somebody is showing a lack of experience and it wasn't the lawyers

  3. My children were taken away a year ago due to drugs, and u struggled to get things on track, and now that I have been passing drug screens for almost 6 months now and not missing visits they have already filed to take my rights away. I need help.....I can't loose my babies. Plz feel free to call if u can help. Sarah at 765-865-7589

  4. Females now rule over every appellate court in Indiana, and from the federal southern district, as well as at the head of many judicial agencies. Give me a break, ladies! Can we men organize guy-only clubs to tell our sob stories about being too sexy for our shirts and not being picked for appellate court openings? Nope, that would be sexist! Ah modernity, such a ball of confusion. https://www.youtube.com/watch?v=QmRsWdK0PRI

  5. LOL thanks Jennifer, thanks to me for reading, but not reading closely enough! I thought about it after posting and realized such is just what was reported. My bad. NOW ... how about reporting who the attorneys were raking in the Purdue alum dollars?

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