McIntyre v. Guthrie

596 N.E.2d 979, 1992 Ind. App. LEXIS 1189, 1992 WL 177370
CourtIndiana Court of Appeals
DecidedJuly 30, 1992
Docket88A05-9107-CV-240
StatusPublished
Cited by6 cases

This text of 596 N.E.2d 979 (McIntyre v. Guthrie) is published on Counsel Stack Legal Research, covering Indiana Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
McIntyre v. Guthrie, 596 N.E.2d 979, 1992 Ind. App. LEXIS 1189, 1992 WL 177370 (Ind. Ct. App. 1992).

Opinions

RUCKER, Justice.

James F. Mcintyre and Norris Dean Mclntyre (collectively referred to as "the Melntyres") appeal a trial court judgment in favor of lower riparian owners for property damage caused by the diversion of the course and flow of a waterway known as Guthrie Creek. The Melntyres raise four issues for our review which we consolidate and rephrase as follows:

1. Did the trial court err in finding the Meclntyres had diverted the course and flow of Guthrie Creek?
2. Did the trial court err in not applying the common enemy doctrine?
3. Did the trial court err in ordering judgment in favor of the lower riparian owners when the Melntyres had obtained a permit from the Indiana Department of Natural Resources to clear the channel along Guthrie Creek?

The Mclntyres own real estate property adjacent to Guthrie Creek, a natural watercourse flowing toward the White River in Lawrence County, Indiana. Downstream from the Meclntyres are two family farms, one of which is owned by the Guthrie family ("the Guthries") and another owned by Michael and Carolyn Dershem ("the Der-shems"). The Guthrie property consists of 117 acres, twenty of which were used for raising crops prior to 1988. The Dershem property consists of over 64 acres, fourteen [981]*981of which were used for raising crops prior to 1983.

In early spring of 1983, the Melntyres, with the use of bulldozers and heavy equipment, cleared trees and brush from along the edges of the creek, straightened the creek bed, and widened its channel. After the work had begun, the Indiana Department of Natural Resources (DNR) received a complaint about the work being done on Guthrie Creek and informed the Melntyres that their work could not be continued without DNR approval."1 In March of 1983, the McIntyres filed with the DNR an Application for Approval of Construction in a Floodway. In June of 1983, DNR issued a certificate of approval which authorized the Mcintyres to clean out the creek subject to several conditions, one of which was that no further inchannel excavation be done. The DNR did not investigate the potential effects of the Melntyres' project on downstream riparian owners.

The topographical changes resulting from the Mclntyres' work caused the water to pass through Guthrie creek at a greater speed, intensity, and volume than before. The increased water flow also resulted in a broader flood plain on the Guthries' and the Dershems' properties, erosion along the banks of Guthrie Creek, and accumulation of trees and debris in the fields contiguous to Guthrie Creek.

After 1983, the Dershems and the Guth-ries were unable to farm their land due to the accumulation of surface water and the effects of erosion. The fair market value of the Guthrie property prior to 1983 was $58,500; after the Melntyres' work on Guthrie Creek, the fair market value of the same property decreased to $24,100. The Dershem property also decreased in value from $82,015 to $21,507. In addition, the new condition of the land made harvesting of the Dershems' timber crop impossible.

In 1987, the Guthries and the Dershems filed separate actions against the Meln-tyres seeking a permanent injunction, special damages, and costs. The trial court consolidated the actions for trial and judgment. After a bench trial, the trial court entered judgment in favor of the MciIntyres holding the Guthries and the Dershems were barred from pursuing a suit for damages and injunctive relief because they had failed to exhaust their administrative remedies. On appeal, this court held the trial court erred in refusing judicial review based on failure to exhaust administrative remedies because no adequate administrative channels existed. We reversed the judgment and remanded the matter to the trial court for findings and conclusions and to render judgment on the Guthries' and the Dershems' combined action. Guthrie v. McIntyre (1990), Ind.App., 563 N.E.2d 651.

On remand, the trial court entered Special Findings of Facts and Conclusions of Law and ordered judgment in favor of the Guthries in the amount of $34,400.00 and in favor of the Dershems in the amount of $43,808.50. The trial court denied the Guthries' and the Dershems' request for injunctive relief. The Melntyres now appeal.

Where the trial court enters special findings we apply a two-tiered standard of review. W & W Equipment Co., Inc. v. Mink (1991), Ind.App., 568 N.E.2d 564, trans. denied. We first determine whether the evidence supports the findings and then determine whether the findings support the judgment. Id. Special findings and the judgment flowing therefrom will be set aside only if they are clearly erroneous. Id.; Ind. Trial Rule 52(A). A finding [982]*982is clearly erroneous if the record is devoid of facts or inferences to support it. Kaminssky v. Kukuch (1990), Ind.App., 553 N.E.2d 868, trans. denied. A judgment is clearly erroneous when unsupported by the findings of fact and conclusions on which the findings are based. DeHaan v. DeHaan (1991), Ind.App., 572 N.E.2d 1315, trans. denied.

I.

The Melntyres claim the trial court erred in finding they physically diverted the course and flow of Guthrie Creek. In support, the Meclntyres assert their work merely returned the waters of Guthrie Creek to the creek's historic banks. The Meclntyres do not indicate the legal significance of returning the creek to its historic banks. Rather, the Melntyres argue that they, as opposed to the Guthries and the Dershems who did nothing to maintain Guthrie Creek, should not be penalized for trying to improve their land by removing the natural effects of time and the seasons on the creek. Notwithstanding the Mecln-tyres' noble intentions, the record reflects the Meclntyres' work physically diverted the course and flow of a waterway.

Evidence in the record includes maps and photographs indicating that prior to the work done by the MclIntyres, Guthrie Creek was a natural watercourse that curved and meandered through the farmland in Lawrence County toward the White River. Testimony of Robert Bierbaum, a neighbor, indicates the Mcintyres created a new creek channel by digging a channel using a large backhoe and bulldozing the dirt from the new creek channel into the natural channel. - Bierbaum's testimony also reveals the channel was moved as much as two-hundred feet in some areas. Dean Meclntyre testified their work removed many of the curves from the creek and enlarged the size of the creek channel. The record reflects testimony by several witnesses indicating after the Melntyres completed their work Guthrie Creek was a dredged ditch, swift, wide, and straight. The record amply supports the trial court's findings that the Meclntyres diverted the flow and course of Guthrie Creek.

IL.

The Meclntyres next contend the trial court erred in not applying the common enemy doctrine. Under the doctrine, each landowner may deal with the problem of surface water in any manner which best suits his convenience without threat of liability. Argyelan v. Haviland (1982), Ind., 435 N.E.2d 973.

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McIntyre v. Guthrie
596 N.E.2d 979 (Indiana Court of Appeals, 1992)

Cite This Page — Counsel Stack

Bluebook (online)
596 N.E.2d 979, 1992 Ind. App. LEXIS 1189, 1992 WL 177370, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mcintyre-v-guthrie-indctapp-1992.