Easter & Cavosie :: Attorneys at Law

Built on Principle
Designed for Efficiency


When Trespass Claims and Negligence Claims Collide in Developing Real Property

February 9, 2016adminUncategorized0

A recent decision by the Indiana Court of Appeals involving trespass by one property owner and negligence by another (which resulted in damages from surface water drainage) led to a split decision for the parties who had been granted a significant monetary award. In Liter’s of Indiana, Inc. v. Earl E. Bennett and Daniel Bodine,  Liter’s developed its property for a residential subdivision in Jefferson County, Indiana, and Bennett and Bodine owned property adjoining the subdivision.  In the course of developing the subdivision, Liter’s discovered that the eaves of the home located on the Bennett and Bodine property and a driveway serving the home encroached upon the Liter’s property.  In order to provide drainage for the subdivision, Liter’s requested an easement from Bennett and Bodine to construct a storm water detention basin on their property; in exchange, Liter’s would grant them an easement so the encroachments could remain.  Bennett and Bodine rejected the request, and Liter’s erected a chain link fence on the property line between its property and the adjoining property, in very close proximity to the home.

Liter’s filed a lawsuit seeking to enjoin the trespass onto its property in connection with the encroachments and to recover damages. Bennett and Bodine filed a counterclaim contending that the fence constituted a nuisance and that Liter’s had negligently designed its subdivision, resulting in surface water from the development flooding their property.

A jury trial was held on the trespass, nuisance and negligence claims. An expert witness retained by Bennett and Bodine testified that, based on calculations that he would have used, the detention basin was too small, resulting in storm water being released from the detention basin at a faster rate; this caused erosion and flooding on the adjoining property.  Liter’s expert witness contradicted that evidence and testified that he had inspected the detention basin and had determined that it was adequate for the subdivision being constructed.  Bodine testified that after Liter’s drainage facilities were constructed and development of the subdivision begun, storm water drained across their property, resulting in erosion underneath their driveway and water ponding against the exterior walls of the home.  A licensed appraiser testified that if such flooding occurred three times a year, Bennett and Bodine would suffer damages in the amount of $134,500.00 as a result of the devaluation of the home.

In addition to testimony designed to contradict the testimony of the expert retained by Bennett and Bodine that the drainage facilities were inadequate, Liter’s sought to rely on the “common enemy” doctrine applied to surface water drainage. The common enemy doctrine provides that surface water which does not flow in defined channels is a common enemy, and each landowner may deal with the water in any manner that best suits its needs; accordingly, it is not unlawful for a landowner to improve its property in a way that accelerates the flow of surface water by limiting ground absorption or changing the grade of the land.  However, there is an exception to the common enemy doctrine where a landowner, by artificial means, collects storm water and casts into onto a neighbor’s property.  The jury negotiated for nine hours and awarded $51,150 each to Bennett and Bodine for damages resulting from the devaluation of their property due to flooding; the Indiana Court of Appeals found that the jury had properly considered the evidence and reasonably determined that, under the exception to the common enemy doctrine, Liter’s undersized detention basin led to casting water onto the adjoining property, supporting the award for the negligence damages.

The fence had been removed, and while the jury found for Bennett on Bodine on their nuisance claim, it awarded no damages. The jury also found in favor of Liter’s on its trespass claim but awarded no damages.  At trial, Liter’s presented evidence that its property had been devalued by $18,000.00 as a result of the trespass by the adjoining property owner.  The Court of Appeals upheld the jury’s decision to not award any damages to Liter’s, noting that it can only consider the evidence that supports the award; because appellate courts are unable to actually look into the minds of the jurors, the courts will not reverse an award if it falls within the evidence.  The Court presumed that the jury followed the court’s instructions that it could award damages and then determined that Liter’s was not entitled to any such damages, even though a trespass existed.  However, the Court also found that, since the eaves of the home still extended over the Liter’s property, Liter’s was entitled to a permanent injunction requiring Bennett and Bodine to remove the portion of the roof that extended over the Liter’s property.  Accordingly, while Bennett and Bodine did receive a substantial monetary award, they will end up spending at least a portion of that amount to alter the home on their property to remove the portion of the roof extending onto the Liter’s property.

By George H. Abel, II

 

Leave a reply