Powell v. Dawson

512 N.E.2d 194, 1987 Ind. App. LEXIS 2990

Opinions

OPINION ON REHEARING

SHIELDS, Presiding Judge.

Prior report: Ind.App., 469 N.E.2d 1179.

Appellants Jack M. Powell and Beverly A. Powell, by Petition for Rehearing, argue the decision of this court is erroneous because it fails to address their appellate argument or raised on appeal, that the trial court erred in granting summary judgment against them on their claim for relief on a nuisance theory based upon Chesapeake & O.R. Co. v. Powell, 113 Ind.App. 1, 44 N.E.2d 514 (1942).

The decision of this court does, in fact, implicitly address the Powells' claim in its statement that the predicate for the Pow-ells' causes of action, as presented, is the existence of a prescriptive easement. In the context of our opinion, the word "predicate" means that the existence of a prescriptive easement is an essential ingredient of Powell's claims for relief, as they argued them.

In the absence of an easement, Dawsons had no duty relating to the field tile. It was not part of a drain established according to law as were the drains in Cheso-peake & O.R. Co. v. Powell. Rather, the field tiles were on Dawsons' property without legal right.

As a matter of law, the Dawsons did not unreasonably interfere with Powells' use and enjoyment of their real estate when the Dawsons interrupted the Powells own "trespass" upon Dawsons' property. Accordingly, an action for nuisance could not exist.

The Petition for Rehearing is denied.

BUCHANAN, J., concurs. SULLIVAN, J., concurs with separate Opinion.