ATTORNEY FOR APPELLANTS
: ATTORNEY FOR APPELLEES:
JAMES E. FREEMAN, JR. PATRICK R. RAGAINS
Sansberry Dickmann Freeman & Builta Smith & Ragains (Not a Partnership)
Anderson, Indiana Anderson, Indiana
THOMAS R. ROMINE, and MARGARET F. )ROMINE, )
OPINION - FOR PUBLICATION
Did the trial court err in awarding compensatory damages?
Did the trial court err in awarding punitive damages?
Did the trial court err in awarding a prescriptive easement in favor of
We affirm in part, reverse in part, and remand.
The facts favorable to the judgment are that the Gagles purchased a house and property in 1988 in Madison County, Indiana. They purchased the house from Betty Bol, who built the house sometime in 1979. The Romines owned the adjoining property on the south side of the Gagles property. A shallow ditch ran from the Gagles property across the Romines property, crossing the boundary line common to the two properties. After a rainfall, water would collect in the ditch and run south from the Gagles property to the Romines property, and then into a nearby drain, called the Andrew J. Jones drain. On July 10, 21, and 24, 1997, the Romines dumped approximately fifty dump-truck loads of dirt on their property at the location (hereinafter referred to as the watershed area) where the accumulated groundwater ran from the Gagles property across the Romines property. The effect of the fill dirt was to raise the level of the watershed area by approximately three feet and create what amounted to a dam. After rain fell the following April, the Gagles yard flooded because the rainwater could not drain from the Gagles property. The Gagles had standing water in their yard for the next forty-eight days. Thereafter, the Gagles property would flood whenever it rained heavily.
On August 11, 1998, the Gagles file a Complaint for Injunction, Abatement of Nuisance[,] Establish Permanent Easement, and Damages. The Gagles alleged that a certain well-defined and natural watercourse, Appellants Appendix at 9, ran from the Gagles property across the Romines property. They alleged that there was a platted utility and drainage easement running along the northern boundary of the Romines property. Finally, the Gagles alleged that the Romines had willfully, intentionally, and wrongfully obstructed said watercourse and said easement with fill material preventing the natural drainage from Plaintiffs real estate across defendants real estate. Id. On December 6, 2001, following a bench trial, the trial court entered the following relevant findings of fact and conclusions of law:
That along the entire south side of defendants real estate is a platted easement reserved for drainage and utilities.
That traversing from a point along the north side of plaintiffs real estate and over, upon and across the platted easement on defendants real estate and continuing over, upon and across defendants real estate in a southerly and westerly direction to an outlet pipe under Acacia Drive, a private mutual road, is a natural surface watercourse having a well defined direction.
That defendants have placed and currently maintain a dirt berm and dirt fill
obstruction over, across and in said mutual surface watercourse and easement.
That the placement and maintenance of said dirt fill and berm or any
obstruction in said natural surface watercourse is in violation of the Indiana Drainage
Code, I.C. § 36-9-27.4-3.
That for more than twenty (20) years plaintiffs and their predecessors in title
have actually, openly, notoriously, continuously, hostilily [sic] and adversely drained their real estate
by and through said natural surface watercourse and easement.
That in addition to the Indiana law prohibiting obstruction of said natural surface
watercourse, plaintiffs have acquired the prescriptive right to drain their real estate through
said natural surface watercourse and over and across defendants real estate.
That defendants actions in placing and maintaining said obstruction in said natural surface
watercourse and easement are and will continue to be injurious to the plaintiffs
health and the public health and is an obstruction that essentially interferes with
the comfortable enjoyment of the life or property of and by plaintiffs, and
is a nuisance.
That defendants willfully, intentionally, and wrongfully obstructed and continue to obstruct said natural
surface watercourse and easement.
That said obdurate and egregious conduct of defendants and said obstruction has caused
plaintiffs and their real estate substantial and peculiar injury and damages, which are
of a continuing nature.
That plaintiffs have no appropriate remedy at law in view of said continuing
substantial and peculiar injury and damages and in view of the fact that
current Indiana drainage law only provides for the removal of such obstruction and
does not enjoin reintroduction of such obstruction.
That plaintiffs are entitled to an injunction ordering defendants to forthwith remove all
dirt and obstructions from said platted easement and from said natural surface watercourse
and easement to the level of the natural contours of the land and
permanently ordering and enjoining defendants and their successors from at any time in
any manner obstructing said natural surface watercourse, drain and easement with dirt or
any other matter and to maintain said natural surface watercourse, drain and easement
to the level of the natural contours of the land as shown in
the Ward topographical map in evidence herein as Plaintiffs Exhibit 4.
That plaintiffs have incurred substantial expenses in attorney fees, expert witness costs and
trial costs plus a $10,000.00 diminution in the value of their real estate
as a direct result of defendants [sic] wrongful, willful and egregious conduct and
are entitled to compensatory and punitive damages in addition to permanent injunction.
Appellants Appendix at 18-20. Further facts will be set forth where necessary.
Natural surface watercourse in this context is defined as, an area of the
surface of the ground over which water from falling rain or melting snow
occasionally and temporarily flows in a definable direction and channel. I.C. §
36-9-27.4-3 (West, PREMISE through 2002 1st Special Sess.). The trial court determined
that the Romines landscaping efforts blocked a natural surface watercourse, within the meaning
of I.C. § 36-9-27.4-3. The Romines assail that ruling on multiple grounds.
First, they contend that the Gagles action invoked the provisions of the
Drainage Obstruction Act, which is intended to apply only to matters filed before
county drainage boards. The Romines complain that the Gagles were obliged to
pursue their action first before the Madison County Drainage Board, and that the
matter could not properly be taken before a trial court until those administrative
remedies were exhausted. Second, the Romines contend that, even assuming the provisions
of the Drainage Obstruction Act do apply, the courts ruling did not make
the requisite finding that groundwater runoff flows through the watershed area in a
channel, as provided in I.C. § 36-9-27.4-3. Finally, the Romines contend that
the courts ruling was erroneous because it contravened the common-enemy doctrine.
We first address the argument that the Gagles were not permitted to file a lawsuit in a trial court until they pursued an action under the Drainage Obstruction Act before the Madison County Drainage Board. We can find no case that discusses this question. Therefore, we turn to the provisions of the Drainage Obstruction Act to ascertain whether the legislature intended that it be the exclusive means of first resort for disputes of the sort involved here. The Drainage Obstruction Act was promulgated in 1996. Prior to its enactment, the common-law pertaining to such disputes favored the landowner who constructed the obstruction, as opposed to the landowner who complained about the obstruction. As long ago as 1878, our supreme court articulated this principle as follows:
The right of an owner of land to occupy and improve it in such manner and for such purposes as he may see fit, either by changing the surface or the erection of buildings or other structures thereon, is not restricted or modified by the fact that his own land is so situated with reference to that of adjoining owner that an alteration in the mode of its improvement or occupation in any portion of it will cause water, which may accumulate thereon by rains and snows falling on it surface, or flowing onto it over the surface of adjacent lots, either to stand in unusual quantities on other adjacent lands, or pass into or over the same in greater quantities or in other directions than they were accustomed to flow. The obstruction of surface water or an alteration in the flow of it affords no cause of action in [sic] behalf of a person who may suffer loss or detriment therefrom against one who does no act inconsistent with the due exercise of dominion over his own soil. See footnote
Taylor v. Fickas, 64 Ind. 167, 173 (1878) (quoting Gannon v. Hargadon, 10
Allen 106). It appears that, over time, the principle or an approximate
derivation thereof became known generally as the common-enemy doctrine, to wit:
In its most simplistic and pure form the rule known as the "common enemy doctrine," declares that surface water which does not flow in defined channels is a common enemy and that each landowner may deal with it in such manner as best suits his own convenience. Such sanctioned dealings include walling it out, walling it in and diverting or accelerating its flow by any means whatever.
Argyelan v. Haviland, 435 N.E.2d 973, 975 (Ind. 1982). Therefore, under the
common-law as it existed prior to the enactment of the Drainage Obstruction Act,
the outcome of a dispute over the construction of an obstruction depended upon
the nature of water whose course it altered. If the water in
question was mere surface water, the common enemy doctrine would allow property owners
to go so far as to completely wall it in, even if that
would result in the nearby owners being either completely deprived of the use
and enjoyment of the water, or of being inundated by it. Trowbridge
v. Torabi, 693 N.E.2d 622 (Ind. Ct. App. 1998), trans. denied. The
common enemy doctrine protects those who erect obstructions only where the obstruction affects
surface water. Id. On the other hand, if the water in
question constitutes a pond or a natural watercourse, the common enemy doctrine would
not apply. Id.
Our research leads us to conclude that the Drainage Obstruction Act adds to the substantive common-law primarily in that it permits complaining parties to seek redress for a dispute, not only in state superior and circuit courts, but also before the appropriate county drainage board. See footnote Viewed against this historical backdrop, it appears that the Drainage Obstruction Act did not so much change the common-law as it created an alternative forum for deciding such disputes. As reviewed above, the common-law developed two alternate outcomes, one favoring the obstruction builder (where the common enemy doctrine applies), the other favoring the complaining neighbor (where the court found a natural watercourse or pond was involved). It appears that the Drainage Obstruction Act addresses and expands upon the law as it developed in the latter circumstance.
It is well established that when the legislature has provided a statutory scheme with an exclusive administrative remedy, our courts lack jurisdiction to hear the matter until the administrative procedures have been exhausted or request for relief has been denied. State v. Sproles, 672 N.E.2d 1353 (Ind. 1996). Exclusivity may be determined by examining the provisions of the statute in question. Typically, the expression of exclusivity will come in either of two forms. Some statutes will affirmatively state that its provisions constitute the exclusive remedy for such actions. See, e.g., Ind. Code Ann. § 2-3-2-6 (West, PREMISE through 2002 1st Special Sess.) ([t]he rights and remedies granted to an employee subject to I.C. § 22-3-2 through I.C. § 22-3-6 on account of personal injury or death by accident shall exclude all other rights and remedies at common law or otherwise). In others, the statute provides that judicial review is available only after the remedies provided in the statute are exhausted. See e.g., Ind. Code Ann. § 4-21.5-5-4 (West 2002) ([a] person may file a petition for judicial review under this chapter only after exhausting all administrative remedies available within the agency whose action is being challenged and within any other agency authorized to exercise administrative review).
The interpretation of a statute is a question of law reserved for the courts. We review such questions under a de novo standard and owe no deference to a trial court's legal conclusions. A statute whose language is clear and unambiguous is not subject to judicial interpretation. Dierckman v. Area Planning Com'n of Franklin County, Ind., 752 N.E.2d 99 (Ind. Ct. App. 2001), trans. denied.
"When the word 'shall' appears in a statute, it is construed as mandatory rather than directory unless it appears clear from the context or the purpose of the statute that the legislature intended a different meaning." State, Indiana Civil Rights Com'n v. Indianapolis Newspapers, Inc., 716 N.E.2d 943, 947 (Ind. 1999) (quoting United Rural Elec. Membership Corp. v. Indiana & Michigan Elec. Co., 549 N.E.2d 1019, 1022 (Ind. 1990)). The term must carries with it the same meaning. See City of Muncie v. Lowe, 705 N.E.2d 528 (Ind. Ct. App. 1999) (construing Ind. Code Ann. § 36-4-3-4(f) (West, PREMISE through 2002 1st Special Sess.)), trans. denied.
Upon examining the provisions of the Drainage Obstruction Act, we find no indication in the Act that it is intended to provide the only recourse for parties pursuing claims of this nature. There are no provisions such as those examples set out above. In fact, the only provision relevant to the point indicates that an action before a county review board is discretionary, and not mandatory. I.C. § 36-9-27.4-9 provides that a person seeking the removal of the obstruction may file a petition under the Drainage Obstruction Act. [Emphasis supplied.] The term "may" in a statute ordinarily implies a permissive condition and a grant of discretion. Schoemer v. Hanes & Assoc., Inc., 693 N.E.2d 1333 (Ind. Ct. App. 1998). The Romines have not offered any persuasive argument to justify a departure from that usual rule of construction. See, Williams v. City of Indianapolis Dept. of Public Works, 558 N.E.2d 884 (Ind. Ct. App. 1990), trans. denied. Therefore, we hold that, rather than requiring complainants to first file actions under the Drainage Obstruction Act prior to commencing an action in a trial court, the Drainage Obstruction Act clearly makes the choice of forum a matter of the petitioners discretion. See footnote
As a corollary to the aforementioned argument, the Romines appear to contend that the provisions of the Drainage Obstruction Act are intended to apply only to proceedings before county drainage boards, and not actions filed in trial courts. Specifically, the Romines contend that the Gagles cannot benefit from the use of the definition of natural surface watercourses I.C. 36-9-27.4-3 [sic] without complying with the requirements of I.C. 36-9-27.4-1et sec [sic]. Brief of Appellant at 11. As indicated previously, the definition set out in I.C. § 36-9-27.4-3 is an area of the surface of the ground over which water from falling rain or melting snow occasionally and temporarily flows in a definable direction and channel. Under the common-law as it existed before the adoption of the Drainage Obstruction Act, a party could not erect an obstruction that interfered with the flow of a natural watercourse, which was defined as follows:
[A] course or channel consisting of well defined banks and a bottom through which water flows in a definite direction for a substantial period each year. The size of the watercourse is immaterial as is the necessity of a constant water flow. It is sufficient that water from heavy rains is regularly discharged through a well defined channel in order to constitute a natural watercourse.
Trowbridge v. Torabi, 693 N.E.2d at 628 (quoting Gasway v. Lalen, 526 N.E.2d
1199, 1201 (Ind. Ct. App. 1988)). The two definitions (i.e., common-law and
statutory) are similar enough that the determination would often produce identical results, regardless
of which definition is used. Moreover, to the extent that they differ,
we are hard-pressed to identify a rationale for requiring trial courts to apply
one, while at the same time permitting county drainage boards to apply a
different one. This is especially so where, as here, the county drainage
boards determination may be appealed to the trial court. On balance, then,
we are inclined to view the definition of more recent origin set out
in the Drainage Obstruction Act as the preferred definitionat least in the view
of the Legislature. In any event, the trial court did not err
in citing the definition set out in I.C. § 35-9-27.4-3.
The Romines contend that the trial court erred in not supporting its ruling by an explicit finding that the water flowed in a channel as provided in I.C. § 35-9-27.4-3. The Romines are correct in their observation that the court did not include the term channel in describing the watercourse (viz., traversing across defendants real estate is a natural surface watercourse having a well-defined direction). First, we observe that although the trial court was permitted to utilize the definition in section 3, it was not obligated to do so. Moreover, we see no indication that channel is intended to be a magic word in this context. Rather, the common-law and statutory definitions both convey the same ideaa natural surface watercourse is one through which water regularly, though not constantly, flows along and through an identifiable and more or less permanent course, which includes among its features a bed where a natural stream of water runs. See Merriam-WebsterDictionary, available at www.m-w.com/cgi-bin/dictionary. It is fair to say in the instant case that the required criteria under either the common-law or statutory definitions of natural surface watercourse were either explicitly or implicitly set out in the trial courts findings; this includes the existence of a channel.
We note as an aside that the Romines contend that if the trial court applied the common-enemy doctrine, the outcome should be different. As indicated previously, under the common enemy doctrine, surface water that does not flow in defined channels is classified as a common enemy and each landowner may deal with it in such manner that is most fitting under the circumstances. Argyelan v. Haviland, 435 N.E.2d 973. The doctrine does not apply, however, to protect the landowner who alters or interferes with a natural watercourse unless the impact on the natural watercourse is minimal. Bulldog Battery Corp. v. Pica Inv., Inc., 736 N.E.2d 333 (Ind. Ct. App. 2000). In this case, the trial court determined that the Romines landscaping endeavors interfered with a natural watercourse. Thus, the common enemy doctrine would not protect them.
Gasway v. Lalen, 526 N.E.2d at 1203 (citations omitted). In the instant
case, the trial court awarded $10,000.00 to the Gagles, an amount representing the
courts assessment of the diminution in the value of their real estate.
The Gagles concede that diminution in value is not the correct measure of
damages in this circumstance. Rather, they assert that compensatory damages should be
measured by the amount necessary to remedy the drainage problem created by the
It is clear that in cases where an obstruction has caused flooding, which in turn caused property damage, the resulting diminution of value is an appropriate measure of damages. See id. There was no evidence in the instant case, however, that the Gagles property damage was permanent in nature. Rather, it lasted only as long as the current episode of flooding. We agree with the Gagles that the temporary diminution in the value of their property cannot serve as the basis of an award of compensatory damages. Thus, we cannot discern a valid evidentiary basis for the $10,000 compensatory damages award.
Another appropriate measure of damages in lawsuits involving obstructions that cause flooding is the cost of performing remedial measures that would alleviate the flooding. See Jordan v. Talaga, 532 N.E.2d 1174 (Ind. Ct. App. 1989), trans. denied. The Gagles urge us to modify the compensatory award to comport with the recommendations of Durham with respect to undertaking measures that will solve the Gagles flooding problem. Specifically, the Gagles note that Durham submitted two recommendations. First, he recommended removing the fill dirt placed there by the Romines in 1997. Durham estimated this would cost approximately $1100. Second, Durham recommended installing twin, twelve-inch perfayer [sic] pipes under a road shared by the Romines and Gagles properties, at a cost of $7500. It appears that the Gagles would have us accept both recommendations, and modify the amount of compensatory damages to $8900.
We note first that when the two amounts are added together, the total is $8600, not $8900. Second, our reading of the record convinces us that Durham presented these two remedies as separate and distinct alternatives, not parts of a multi-step strategy, to wit:
A. I think any other thing I had in my report is, I had some recommendations to resolve the problem, that reading this other thing I havent mentioned. My number one (1) recommendation was to remove the fill material, to open up the swell and to provide a positive drainage, looking into the neighbors landscaping (indiscernible) for the balance of the common property line and I provide an estimate back in 97 for that of eleven hundred dollars ($1,100). The second recommendation would be for the installation of a perfayer pipe which would allow them to cross pipe on the adjoining properties. This cross pipe would have to be replaced with twin 12 pipes that the pipe under (indiscernible) field to the east of the proposed site and at that time I had estimated probably to cost about seventy-five hundred dollars ($7,500).
Q. Did you ever determine whether any of those others [sic] possibilities were acceptable
to the Gagles?
A. I offered them two (2) recommendations and I think we left it at
Q. Okay. They didnt say yes or no or were they
A. I think they were inclined to believe that they would like to have
the fill material removed. I believe they went with the recommendation number
one (12) [sic].
The Transcript at 23-24. Therefore, it would not be appropriate to award
damages in an amount representing the cost of both alternatives, when only one
This leads to the conclusion that compensatory damages should be awarded in the amount of either $1100 (the cost of the first remedial method) or $7500 (the cost of the second remedial method). Obviously, we have no way of discerning which of the two the trial court would choose, because its original award was based on different criteria. Moreover, we are in a poor position to evaluate the merits of one alternative over the other. We therefore must remand this case to the trial court to reconsider the award of compensatory damages and to fashion a new award consistent with the principles set out above.
Taylor v. Fickas, 64 Ind. at 174 (quoting Goodale v. Tuttle, 29 N.Y.