MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Mar 30 2015, 10:31 am Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.
ATTORNEYS FOR APPELLANT Jody M. Butts Megan M. McCooe McNeely Stephenson Shelbyville, Indiana
IN THE COURT OF APPEALS OF INDIANA
Louis Ridgeway, March 30, 2015
Appellant-Defendant, Court of Appeals Case No. 67A04-1409-SC-410 v. Appeal from the Putnam Superior Court Richard Jacobs, The Honorable Charles D. Bridges, Judge Appellee-Plaintiff Case No. 67D01-1310-SC-556
Vaidik, Chief Judge.
Case Summary [1] Richard Jacobs sued Louis Ridgeway in small-claims court alleging that water
run-off from Ridgeway’s property damaged his driveway, making it unpassable.
The small-claims court found in favor of Jacobs and awarded him $4500 in Court of Appeals of Indiana | Memorandum Decision 67A04-1409-SC-410 | March 30, 2015 Page 1 of 8 damages. Ridgeway now appeals, arguing that the common-enemy doctrine
applies.
[2] According to the common-enemy doctrine, surface water that does not flow in
defined channels is a common enemy, and each landowner may deal with it in
such a manner as best suits his own convenience. Here, the evidence presented
at trial was that the “run-off” was surface water, which is subject to the
common-enemy doctrine. That is, the evidence showed that the water flowed
over several locations on Jacobs’ property—and not in a defined channel.
According to the common-enemy doctrine, this is not actionable. We therefore
reverse the small-claims court’s judgment in favor of Jacobs.
Facts and Procedural History [3] Ridgeway owns 103 acres of land on West County Road 350 North in Putnam
County, Indiana, and has farmed it for forty years. Jacobs’ property abuts
Ridgeway’s property on the west. Jacobs purchased his property in 1998 and
last lived there in 2009 or 2010. It is undisputed that “run-off” from
Ridgeway’s crop field has damaged Jacobs’ .25-mile-long driveway, creating a
very large ditch that has made Jacobs’ driveway unpassable. See Appellant’s
App. p. 9. As a result, Jacobs cannot reach his house by car.
[4] In October 2013 Jacobs, pro se, filed a notice of claim in small-claims court.
Jacobs alleged “water damage to driveway” because Ridgeway’s “run off of
Court of Appeals of Indiana | Memorandum Decision 67A04-1409-SC-410 | March 30, 2015 Page 2 of 8 water did away with my driveway.” Id. at 11. He sought $4500 in damages,
plus interest and costs. Id.
[5] The small-claims trial was held in March 2014. Ridgeway was represented by
counsel. Jacobs testified that Ridgeway was “negligen[t]” because he had done
“nothing” to stop the water from coming onto Jacobs’ property; Jacobs alleged
that instead Ridgeway was required to do “conservation work” on his property
to stop the water from coming onto Jacobs’ property. Tr. p. 6, 17, 21, 34; see
also id. at 6 (“I’ve got pictures here that show the erosion of [Ridgeway’s] field
and how it runs down directly on to my property. . . . It’s like a flash flood, it’s
that fast.” (emphasis added)). Jacobs admitted into evidence photographs of
Ridgeway’s field showing the erosion. Ex. 1 (three photos). Jacobs also
admitted into evidence a letter from a conservationist at the United States
Department of Agriculture who visited his and Ridgeway’s properties. Ex. 2.
The conservationist addressed the “washed out crossings that [were] restricting
access to [Jacobs’] property” and the “erosion issue” in “the crop field next to
[Jacobs’] property.” Id.
[6] Ridgeway testified about the run-off but said “it’s not coming from my farm, it’s
coming from up above my farm.” Tr. p. 35. And he testified that it does so
only when it rains two or three inches. Id. at 23. Ridgeway explained that he
grades and fixes his field each year in order to maintain it and that he started
planting wheat in order to slow the water. Id. at 35-36. In addition, Ridgeway
said he “maintained [the] ravines, ke[pt] them built up, there’s been times I
went and bought dirt and put dirt in them, to keep the field farmable.” Id. at 25.
Court of Appeals of Indiana | Memorandum Decision 67A04-1409-SC-410 | March 30, 2015 Page 3 of 8 Ridgeway was adamant that he did not make any improvements that would
cause any surface water to run onto Jacobs’ property, and he said he never
collected or disposed of water on Jacobs’ property. Id.
[7] Finally, Ridgeway explained that about thirty years ago, Putnam County
installed drainage systems called “whistles” on the east and north sides of his
property. Id. at 22. Ridgeway did not request the whistles and had no input in
their installation.
[8] In closing, counsel for Ridgeway argued that the common-enemy doctrine
applied and therefore Ridgeway was not liable for the damages to Jacobs’
driveway. The trial court took the case under advisement and later found in
favor of Jacobs. Appellant’s App. p. 7. After a damages hearing, the court
issued the following order in August 2014:
1. The Plaintiff presented credible testimony and a witness as to the damage the run-off from the Defendant’s farm field caused to the Plaintiff’s driveway. 2. Said damage is in the form of an approximately 15’ wide x 9’ deep x 50’ long ditch, which transverses the Plaintiff’s drive thereby preventing the Plaintiff from gaining access to his residence. Plaintiff’s estimate to repair the drive and install a drainage “whistle” is $4500.00. 3. The Defendant has taken no corrective measures to prevent the run- off damage to Plaintiff’s property. 4. This Judgment is for damages sustained to the Plaintiff’s driveway only. Id. at 9. Accordingly, the court ordered Ridgeway to pay Jacobs $4500 plus
interest and costs of $94.
Court of Appeals of Indiana | Memorandum Decision 67A04-1409-SC-410 | March 30, 2015 Page 4 of 8 [9] Ridgeway now appeals.
Discussion and Decision [10] Ridgeway contends that the trial court erred in determining that he was liable
for the damage to Jacobs’ driveway. Jacobs has not filed an appellee’s brief.
When an appellee does not submit a brief, we do not undertake the burden of
developing arguments for that party. Thurman v. Thurman, 777 N.E.2d 41, 42
(Ind. Ct. App. 2002). Instead, we apply a less stringent standard of review and
may reverse if the appellant establishes prima facie error. Id.
[11] Our standard of review in small-claims cases is well settled. Small-claims-court
judgments are “subject to review as prescribed by relevant Indiana rules and
statutes.” Ind. Small Claims Rule 11(A). Under Indiana Trial Rule 52(A), the
clearly erroneous standard applies to appellate review of facts determined in a
bench trial with due regard given to the opportunity of the trial court to assess
witness credibility. This deferential standard of review is particularly important
in small-claims actions, where trials are designed to speedily dispense justice by
applying substantive law between the parties in an informal setting. Vance v.
Lozano, 981 N.E.2d 554, 557 (Ind. Ct. App. 2012). But this deferential standard
does not apply to the substantive rules of law, which are reviewed de novo just
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MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Mar 30 2015, 10:31 am Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.
ATTORNEYS FOR APPELLANT Jody M. Butts Megan M. McCooe McNeely Stephenson Shelbyville, Indiana
IN THE COURT OF APPEALS OF INDIANA
Louis Ridgeway, March 30, 2015
Appellant-Defendant, Court of Appeals Case No. 67A04-1409-SC-410 v. Appeal from the Putnam Superior Court Richard Jacobs, The Honorable Charles D. Bridges, Judge Appellee-Plaintiff Case No. 67D01-1310-SC-556
Vaidik, Chief Judge.
Case Summary [1] Richard Jacobs sued Louis Ridgeway in small-claims court alleging that water
run-off from Ridgeway’s property damaged his driveway, making it unpassable.
The small-claims court found in favor of Jacobs and awarded him $4500 in Court of Appeals of Indiana | Memorandum Decision 67A04-1409-SC-410 | March 30, 2015 Page 1 of 8 damages. Ridgeway now appeals, arguing that the common-enemy doctrine
applies.
[2] According to the common-enemy doctrine, surface water that does not flow in
defined channels is a common enemy, and each landowner may deal with it in
such a manner as best suits his own convenience. Here, the evidence presented
at trial was that the “run-off” was surface water, which is subject to the
common-enemy doctrine. That is, the evidence showed that the water flowed
over several locations on Jacobs’ property—and not in a defined channel.
According to the common-enemy doctrine, this is not actionable. We therefore
reverse the small-claims court’s judgment in favor of Jacobs.
Facts and Procedural History [3] Ridgeway owns 103 acres of land on West County Road 350 North in Putnam
County, Indiana, and has farmed it for forty years. Jacobs’ property abuts
Ridgeway’s property on the west. Jacobs purchased his property in 1998 and
last lived there in 2009 or 2010. It is undisputed that “run-off” from
Ridgeway’s crop field has damaged Jacobs’ .25-mile-long driveway, creating a
very large ditch that has made Jacobs’ driveway unpassable. See Appellant’s
App. p. 9. As a result, Jacobs cannot reach his house by car.
[4] In October 2013 Jacobs, pro se, filed a notice of claim in small-claims court.
Jacobs alleged “water damage to driveway” because Ridgeway’s “run off of
Court of Appeals of Indiana | Memorandum Decision 67A04-1409-SC-410 | March 30, 2015 Page 2 of 8 water did away with my driveway.” Id. at 11. He sought $4500 in damages,
plus interest and costs. Id.
[5] The small-claims trial was held in March 2014. Ridgeway was represented by
counsel. Jacobs testified that Ridgeway was “negligen[t]” because he had done
“nothing” to stop the water from coming onto Jacobs’ property; Jacobs alleged
that instead Ridgeway was required to do “conservation work” on his property
to stop the water from coming onto Jacobs’ property. Tr. p. 6, 17, 21, 34; see
also id. at 6 (“I’ve got pictures here that show the erosion of [Ridgeway’s] field
and how it runs down directly on to my property. . . . It’s like a flash flood, it’s
that fast.” (emphasis added)). Jacobs admitted into evidence photographs of
Ridgeway’s field showing the erosion. Ex. 1 (three photos). Jacobs also
admitted into evidence a letter from a conservationist at the United States
Department of Agriculture who visited his and Ridgeway’s properties. Ex. 2.
The conservationist addressed the “washed out crossings that [were] restricting
access to [Jacobs’] property” and the “erosion issue” in “the crop field next to
[Jacobs’] property.” Id.
[6] Ridgeway testified about the run-off but said “it’s not coming from my farm, it’s
coming from up above my farm.” Tr. p. 35. And he testified that it does so
only when it rains two or three inches. Id. at 23. Ridgeway explained that he
grades and fixes his field each year in order to maintain it and that he started
planting wheat in order to slow the water. Id. at 35-36. In addition, Ridgeway
said he “maintained [the] ravines, ke[pt] them built up, there’s been times I
went and bought dirt and put dirt in them, to keep the field farmable.” Id. at 25.
Court of Appeals of Indiana | Memorandum Decision 67A04-1409-SC-410 | March 30, 2015 Page 3 of 8 Ridgeway was adamant that he did not make any improvements that would
cause any surface water to run onto Jacobs’ property, and he said he never
collected or disposed of water on Jacobs’ property. Id.
[7] Finally, Ridgeway explained that about thirty years ago, Putnam County
installed drainage systems called “whistles” on the east and north sides of his
property. Id. at 22. Ridgeway did not request the whistles and had no input in
their installation.
[8] In closing, counsel for Ridgeway argued that the common-enemy doctrine
applied and therefore Ridgeway was not liable for the damages to Jacobs’
driveway. The trial court took the case under advisement and later found in
favor of Jacobs. Appellant’s App. p. 7. After a damages hearing, the court
issued the following order in August 2014:
1. The Plaintiff presented credible testimony and a witness as to the damage the run-off from the Defendant’s farm field caused to the Plaintiff’s driveway. 2. Said damage is in the form of an approximately 15’ wide x 9’ deep x 50’ long ditch, which transverses the Plaintiff’s drive thereby preventing the Plaintiff from gaining access to his residence. Plaintiff’s estimate to repair the drive and install a drainage “whistle” is $4500.00. 3. The Defendant has taken no corrective measures to prevent the run- off damage to Plaintiff’s property. 4. This Judgment is for damages sustained to the Plaintiff’s driveway only. Id. at 9. Accordingly, the court ordered Ridgeway to pay Jacobs $4500 plus
interest and costs of $94.
Court of Appeals of Indiana | Memorandum Decision 67A04-1409-SC-410 | March 30, 2015 Page 4 of 8 [9] Ridgeway now appeals.
Discussion and Decision [10] Ridgeway contends that the trial court erred in determining that he was liable
for the damage to Jacobs’ driveway. Jacobs has not filed an appellee’s brief.
When an appellee does not submit a brief, we do not undertake the burden of
developing arguments for that party. Thurman v. Thurman, 777 N.E.2d 41, 42
(Ind. Ct. App. 2002). Instead, we apply a less stringent standard of review and
may reverse if the appellant establishes prima facie error. Id.
[11] Our standard of review in small-claims cases is well settled. Small-claims-court
judgments are “subject to review as prescribed by relevant Indiana rules and
statutes.” Ind. Small Claims Rule 11(A). Under Indiana Trial Rule 52(A), the
clearly erroneous standard applies to appellate review of facts determined in a
bench trial with due regard given to the opportunity of the trial court to assess
witness credibility. This deferential standard of review is particularly important
in small-claims actions, where trials are designed to speedily dispense justice by
applying substantive law between the parties in an informal setting. Vance v.
Lozano, 981 N.E.2d 554, 557 (Ind. Ct. App. 2012). But this deferential standard
does not apply to the substantive rules of law, which are reviewed de novo just
as they are in appeals from a court of general jurisdiction. Id. at 557-58.
[12] The parties in small-claims court bear the same burdens of proof as they would
in a regular civil action on the same issues. Ind. Small Claims Rule 4(A). It is
Court of Appeals of Indiana | Memorandum Decision 67A04-1409-SC-410 | March 30, 2015 Page 5 of 8 incumbent upon the party who bears the burden of proof to demonstrate that it
is entitled to the recovery sought. Vance, 981 N.E.2d at 558. We consider
evidence in the light most favorable to the judgment, together with all
reasonable inferences to be drawn therefrom. Id. We will reverse a judgment
only if the evidence leads to but one conclusion and the trial court reached the
opposite conclusion. Id.
[13] Ridgeway argues that the common-enemy doctrine applies to this case. Water
classified as surface water is governed by the common-enemy doctrine:
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. [14] Long v. IVC Indus. Coatings, Inc., 908 N.E.2d 697, 702 (Ind. Ct. App. 2009)
(quoting Argyelan v. Haviland, 435 N.E.2d 973, 976 (Ind. 1982)). However, this
rule does not allow a landowner to “collect or concentrate surface water and
cast it, in a body, upon his neighbor.” Crowel v. Marshall Cnty. Drainage Bd., 971
N.E.2d 638, 649 (Ind. 2012) (quotation omitted).
[15] Under the common-enemy doctrine, it is not unlawful for a landowner to
accelerate or increase the flow of surface water by limiting or eliminating
ground absorption or changing the grade of the land, even if it causes water to
stand in unusual quantities on the adjacent land or to pass into or over the
adjacent land in greater quantities or in other directions than the water did
before. Argyelan, 435 N.E.2d at 976; Long, 908 N.E.2d at 702. A landowner Court of Appeals of Indiana | Memorandum Decision 67A04-1409-SC-410 | March 30, 2015 Page 6 of 8 has the right to occupy and improve his land in such manner and for such
purposes as he may see fit, including changing the surface or by erecting
buildings thereon. Long, 908 N.E.2d at 702.
[16] The common-enemy doctrine applies only to surface water, and not to a natural
watercourse. Id. Surface water is defined as water that is diffused over the
natural slope of the ground, not following a defined course or channel. Ross v.
Bartholomew Cnty. Drainage Bd., 995 N.E.2d 1051, 1054 (Ind. Ct. App. 2013),
reh’g denied, trans. denied. Surface water generally originates in rains and
melting snows. Long, 908 N.E.2d at 703.
[17] Here, the evidence presented at the small-claims trial was that the “run-off” was
surface water, which is subject to the common-enemy doctrine. That is, the
evidence was that the water flowed over several locations on Jacobs’ property—
and not in a defined channel. See id. (“A natural watercourse is established
when surface water begins to flow in a definite direction and there is a regular
channel formed with well[-]defined banks and bottom and water flows therein,
not necessarily continually but from time immemorial and for a substantial
period of each year.” (quotation omitted)). For example, Jacobs testified: (1)
the water “comes over” his driveway; (2) the water has “eroded my land all the
way across my property down into the neighbors”; (3) “all[] this land use[d] to
be . . . flat, now it’s like a rolley coaster”; and (4) “two (2) more roads down my
property” were “also taken out.” Tr. p. 6, 9. This testimony shows that the
run-off affected several locations on Jacobs’ property.
Court of Appeals of Indiana | Memorandum Decision 67A04-1409-SC-410 | March 30, 2015 Page 7 of 8 [18] Moreover, the exception to the common-enemy doctrine does not apply here.
There is no evidence that Ridgeway collected or concentrated surface water and
then cast it on Jacobs’ property.
[19] According to the common-enemy doctrine, surface water that does not flow in
defined channels is a common enemy, and each landowner may deal with it in
such manner as best suits his own convenience. What this case boils down to is
that Jacobs did not like how Ridgeway dealt with the water issue on his
property. But according to the common-enemy doctrine, this is not actionable.
See Crowel, 971 N.E.2d at 649 (“It is true that under Indiana law, the owner of
higher lands is not liable for flooding of lower lands caused by natural surface-
water drainage from his or her land.”). We therefore reverse the trial court’s
judgment in favor of Jacobs.
[20] Reversed.
Kirsch, J., and Bradford, J., concur.
Court of Appeals of Indiana | Memorandum Decision 67A04-1409-SC-410 | March 30, 2015 Page 8 of 8