Gene B. Glick Company, Inc. v. Marion Construction

333 N.E.2d 140, 165 Ind. App. 72, 165 Ind. App. 94

• Court: Indiana Court of Appeals
• Decided: August 28, 1975
• Docket: 1-375A46
• Status: Published

Opinion

333 N.E.2d 140 (1975)

GENE B. GLICK COMPANY, INC., et al., Appellants (Defendants below),
v.
MARION CONSTRUCTION Corp. and Edwin M. Ransburg, Appellees (Plaintiffs below). Gene B. Glick Company, Inc., et al., Appellants (Defendants below),
v.
Edwin M. Ransburg, Appellee (Plaintiff below).

No. 1-375A46.

Court of Appeals of Indiana, First District.

August 28, 1975.

Gene E. Wilkins, Bamberger & Feibleman, Indianapolis, for appellants.

John E. Hurt, McNutt, Hurt & Blue, Martinsville, Richard L. Gilliom, Stewart, Irwin, Gilliom, Fuller & Meyer, Indianapolis, for appellees.

LOWDERMILK, Judge.

We deem it necessary to comment briefly on appellant Glick's petition for rehearing.

In his petition, Glick contends that our construction of the ordinance involved is incorrect because the lower landowner won't "ever have to worry about any increased flowage from maximum land use because each upstream developer will have to take care of his own surface water drainage problems within the confines of his own land. This just is not what the Ordinance says." (Glick's emphasis.)

Glick misinterprets our holding. We did not hold that upper landowners are responsible for the drainage of lower lands. What we held was that Ordinance 58-AO-13, § 2.06(d)(1)(4) did not permit an upper landowner to develop his land in complete disregard for the discharge of water from his land. The ordinance is not a shield for the unscrupulous and unmindful development of urban properties.

We reiterate that each upper landowner's duty under the ordinance as interpreted is to develop plans that provide for the proper "handl[ing]" of drainage water — and this includes plans for the proper discharge of water from the developed plat.

The lower landowner must still deal with the water while on his property and as it passes from his property. It is important to note that the lower landowner's development of his own property will increase the drainage problems for the landowner yet below him. To allow each higher landowner to increase the problem and simply pass it on so that a few on the lower end must bear the ultimate burden cannot be the purpose of the ordinance here involved.

Other questions raised essentially ask us to reconsider the evidence in support of our judgment. The evidence considered with regard to our original opinion was, of course, that most favorable to appellee Ransburg. That Glick asserts testimony that could support his position cannot alter our conclusions where other evidence of probative value upholds Ransburg's contentions.

Petition for rehearing denied.