Flooding dispute headed to IN Supreme Court

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The Indiana Supreme Court bench in the Indiana Statehouse (IL file photo)

A dispute between a Montgomery County couple, the town of Linden and multiple county departments over whether drainage improvements resulted in a permanent physical invasion of their land will go before the Indiana Supreme Court.

Justices granted transfer to Town Of Linden, Indiana, et al. v. Darrell Birge, 22S-PL-352, while denying five other petitions last week.

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

The Birges claimed that once the drain was improved in 2012, they noticed water ponding on the lower-lying areas of their 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.

After the town won the dismissal of the Birges’ an action for inverse condemnation, the Court of Appeals reversed in July 2016.

On remand, the trial court ultimately issued a judgment and order finding the improvements to the drain had caused repeated flooding on the Birges’ property.

However, in April, the Court of Appeals reversed again, this time finding the evidence did not indicate that there had been a permanent physical invasion.

After a petition for rehearing was denied, a petition to transfer was filed in July. Oral arguments are scheduled for 9 a.m. Dec. 8.

Among the five transfer petitions that were denied, none of the denials were unanimous. Three of the denials came from a split 3-2 vote.

Chief Justice Loretta Rush and Justice Christopher Goff both voted to grant transfer to State of Indiana v. Tala Jones, 21A-CR-2254. In that case, the Court of Appeals reversed an order to suppress drug evidence found after a Miranda violation, finding the state and federal constitutions don’t require suppression of the physical fruits of evidence obtained through the violation after the suspect volunteered the information.

Rush and Goff additionally voted for transfer in Dylan Noel Theobald v. State of Indiana, 21A-CR-2746.

In that case, a motorist who denied hitting a police officer’s car but who offered the officer money to pay for the damages won a partial reversal after the Court of Appeals found he was subject to custodial interrogation without being given Miranda warnings. However, the appellate court did not allow the suppression of the alleged bribery based on the federal new-crime exception.

Lastly, Rush and Justice Derek Molter each voted to grant review in Ingredion Incorporated v. Marion County Assessor, 20T-TA-6, a case out of the Indiana Tax Court. Molter also voted in favor of review of a related case with the same name but docketed as 20T-TA-7.

Lastly, Goff was the lone vote in favor of transfer in Trent Michael Weaver v. State of Indiana, 21A-CR-2424, which involved the imposition of consecutive sentences on a man who sold fentanyl-laced heroin to a friend, who later overdosed.

The full list of transfer decisions is available online.

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