Reversal: Landowners, not county, responsible for fixing failing dams near Peru

Reversing a trial court that determined Miami County was responsible for fixing six crumbling dams in a lake community housing addition, the Indiana Court of Appeals found the county was responsible only for the roads that crossed the tops of the embankments.

The ruling concerns a long-simmering dispute between officials in Miami County north of Indianapolis and residents of the Hidden Hills addition near Peru.

The addition was built beginning in the 1990s and includes six dams that the Department of Natural Resources in 2014 found to be unsafe and ordered the owners to take action to fix them. Both the county and property owners, including name appellees Walter and Dorthy Woodham, assert the opposing parties in this litigation own the dams and, therefore, are obligated to maintain them in safe condition.

The Indiana Natural Resources Commission found the county owned not only the roads atop the dams when it had accepted easements into its highway system, but also the dams beneath them. On judicial review, Marion Superior Judge P.J. Dietrick agreed, finding that when the county accepted the roadways, it also accepted the structures beneath, and therefore was on the hook for the costs of repairs.

The Indiana Court of Appeals on Tuesday reversed in Miami County and Miami County Board of Commissioners v. Indiana Department of Natural Resources and Walter B. Woodhams and Dorothy Woodhams, et al., 19A-MI-2099.

“The County advances a multifaceted argument that it is not an ‘owner’ of the dams pursuant to the (Dam Safety Act) and therefore should not be responsible for repairing or reconstructing them. We agree, for the simple reason that the County does not have ‘an interest in or to the property upon which the structure is located,’” Judge Terry Crone wrote for the panel, citing to Ind. Code § 14-27-7.5-4.

“Only the Owners have an interest in the property ‘upon which’ the dams are located, and only they have a duty to repair or reconstruct the dams pursuant to the Act. The County has only an easement interest in the roads on top of the dams, and it is obligated to maintain only the roads pursuant to its 2005 resolution.”

In a footnote, the panel observed that “Under the NRC’s and the trial court’s reasoning, a nonprofit group that owns an easement for a hiking path on top of a dam would be considered an ‘owner’ of the dam pursuant to the Act and therefore would be responsible for maintaining the entire dam. This strikes us as an unjust and absurd result.”

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