COA reverses ruling in drainage dispute

A Montgomery County couple concerned about flooding on their property due to drain improvements made for a local town faced a reversal Monday after the Court of Appeals of Indiana found a trial court wrongly ruled in determining a permanent physical invasion had taken place on their land.

In September 2014, Darrell and Sandra Birge sued the town of Linden and the Montgomery County commissioners, drainage board and surveyor after improvements were completed to an existing regulated drain to alleviate flooding issues in Linden and the surrounding areas.

Part of the drain runs through a preexisting drainage easement on the Birge’s property, which they use for farming. The Birges claimed that once the drain was improved in 2012, they began to notice water ponding on the lower-lying areas of the property after any significant rainfall.

The flooding made it hard to farm those parts of their property, so the Birges refused to pay the $7,679.23 assessment levied against them by the drainage board.

The Birges filed an action for inverse condemnation, and the Court of Appeals reversed the town’s granted motion to dismiss on the premise that it was immune from liability under the Indiana Tort Claims Act.

On remand, the trial court denied the defendants’ motion for summary judgment. It ultimately issued a judgment and order finding that the improvements to the drain had caused repeated flooding on the Birges’ property.

But the COA reversed and remanded in Town of Linden, Indiana, Montgomery County, Indiana, Montgomery County Commissioners, Montgomery County Drainage Board, and Montgomery County Surveyor v. Darrell Birge and Sandra Birge, 21A-PL-1811.

In addressing whether the trial court erred in concluding that the effects of the drain on the Birges’ property constituted a compensable taking, the COA agreed with the defendants that the evidence did not indicate that there had been a permanent physical invasion.

“The evidence established instead frequent, periodic flooding of the land,” Judge Elizabeth Tavitas wrote. “The Defendants claim that such non-permanent flooding cannot constitute a taking. With this, we disagree.”

In applying precedent from Arkansas Game & Fish Comm’n v. United States, 568 U.S. 23, 34, 133 S. Ct. 511 (2012), and Penn Central Transportation Co. v. New York City, 438 U.S. 104, 125 S. Ct. 2646 (1978), the COA concluded that the trial court erred as a matter of law when it found that the frequent but nonpermanent flooding of the property constituted a permanent physical invasion of the property and a per se taking.

As for the other issues raised, the COA noted that the trial court made no reference to the highest and best use of the property when it concluded that there had been a taking, that there was sufficient evidence to support the trial court’s finding that the flooding was caused by the drain improvements and that the trial court did consider the easement in its takings finding.

“Accordingly, we reverse the trial court’s takings determination and remand with instructions that the trial court consider the Penn Central/Arkansas Game factors in determining whether the intermittent flooding of the Property caused by the improvements to the Drain constitute a taking of the Property,” Tavitas wrote.

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