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
ADVERTISEMENT
Subscribe to Indiana Lawyer
  1. Im very happy for you, getting ready to go down that dirt road myself, and im praying for the same outcome, because it IS sometimes in the childs best interest to have visitation with grandparents. Thanks for sharing, needed to hear some positive posts for once.

  2. Been there 4 months with 1 paycheck what can i do

  3. our hoa has not communicated any thing that takes place in their "executive meetings" not executive session. They make decisions in these meetings, do not have an agenda, do not notify association memebers and do not keep general meetings minutes. They do not communicate info of any kind to the member, except annual meeting, nobody attends or votes because they think the board is self serving. They keep a deposit fee from club house rental for inspection after someone uses it, there is no inspection I know becausee I rented it, they did not disclose to members that board memebers would be keeping this money, I know it is only 10 dollars but still it is not their money, they hire from within the board for paid positions, no advertising and no request for bids from anyone else, I atteended last annual meeting, went into executive session to elect officers in that session the president brought up the motion to give the secretary a raise of course they all agreed they hired her in, then the minutes stated that a diffeerent board member motioned to give this raise. This board is very clickish and has done things anyway they pleased for over 5 years, what recourse to members have to make changes in the boards conduct

  4. Where may I find an attorney working Pro Bono? Many issues with divorce, my Disability, distribution of IRA's, property, money's and pressured into agreement by my attorney. Leaving me far less than 5% of all after 15 years of marriage. No money to appeal, disabled living on disability income. Attorney's decision brought forward to judge, no evidence ever to finalize divorce. Just 2 weeks ago. Please help.

  5. For the record no one could answer the equal protection / substantive due process challenge I issued in the first post below. The lawless and accountable only to power bureaucrats never did either. All who interface with the Indiana law examiners or JLAP be warned.

ADVERTISEMENT