IN justices vacate, remand trial court’s ruling in Montgomery Co. flooding case

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The Indiana Supreme Court has vacated a trial court’s order finding that improvements to a drain caused repeated flooding to a Montgomery County couple’s farmland, ruling the trial court left one question unresolved.

The court remanded the case to the Montgomery Circuit Court for further factual findings and for a final determination of damages, if any.

Darrell and Sandra Birge sued the town of Linden and the Montgomery County commissioners, along with the 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. Part of the drain runs through a preexisting drainage easement on the Birges’ 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.

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

The Birges filed an action for inverse condemnation, but the town was granted a motion to dismiss on the premise that it was immune from liability under the Indiana Tort Claims Act. The Court of Appeals of Indiana reversed the granted motion in 2016.

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

But the Court of Appeals reversed again in April 2022, 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, and the Supreme Court granted transfer in October.

The Supreme Court considered two arguments from the Birges.

First, they argued that the trial court properly determined the city’s actions resulted in permanent physical invasion and that the Court of Appeals misconstrued applicable federal precedent by concluding the flooding amounted only to a temporary physical invasion. They also argued the Court of Appeals improperly expanded the defendants’ statutory immunity from a takings claim by limiting the flooding’s impact to those portions of the property lying beyond the drainage easement.

The Supreme Court agreed with the Birges in both cases.

Taking up first the issue of permanent versus temporary physical invasion, the court found the flooding amounted to a “permanent condition” because it was repetitive and of indefinite duration. It cited Cedar Point Nursery v. Hassid, 141 S.Ct. 2063 (2021).

“Indeed, so long as the Property sustains ‘heavy rainfall’ (or unless and until the County takes the necessary corrective measures), the flooding will persist indefinitely,” the opinion reads. “This type of physical appropriation reflects the ‘clearest sort of taking,’ which we assess by ‘using a simple, per se rule: The government must pay for what it takes.’”

The Supreme Court also noted a taking occurs only when the damage is substantial, which the opinion says is a question for the factfinder. The trial court found only that the flooding rendered farming on the property more difficult.

The Supreme Court remanded for further development of the trial court’s factual findings to support its determination on whether the flooding amounted to a permanent physical invasion.

On the issue of the county’s statutory immunity, the court found the right of entry under Indiana Code § 36-9-27-33 does not exempt the county from liability for a takings claim.

The law in question gives to a county a “right of entry over and upon land” lying within 75 feet of a regulated drain, and it exempts a county from liability for any necessary drain “reconstruction or maintenance” that results in damage to crops grown within that right-of-way.

But the court noted counties still have a responsibility to “use due care to avoid damage” to crops in the right-of-way. The court also noted the statute applies to “incidental” intrusions that are “minimal and infrequent,” but the “complete destruction of crops from intermittent yet inevitably recurring” flooding doesn’t allow the farmer to use the land in a manner consistent with drainage law.

“Interpreting the statute as immunizing the county from liability for any loss occurring within the easement would deprive the Birges of their right to farm the land and to realize its fullest economic potential,” the opinion reads.

Justice Christopher Goff wrote the opinion, in which Chief Justice Loretta Rush and Justices Mark Massa, Geoffrey Slaughter and Derek Molter concurred.

The case is Town of Linden, Indiana, et al. v. Darrell Birge and Sandra Birge, 22S-PL-352.

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