§ 36-9-27-33 — Right of entry over private land; extension of spoil banks beyond right-of-way

(a) The county surveyor, the board, or an
authorized representative of the surveyor or the board acting under this
chapter has the right of entry over and upon land lying within
seventy-five (75) feet of any regulated drain. The seventy-five (75) foot
limit shall be measured at right angles to:
(1) the center line of any tiled drain; and
(2) the top edge of each bank of an open drain;
as determined by the surveyor.
(b) Spoil bank spreading resulting from the construction,
reconstruction, or maintenance of an open drain may extend beyond the
seventy-five (75) foot right-of-way if:
(1) the county surveyor finds that the extension is necessary; and
(2) the extension has been provided for in the engineer's report on
the construction, reconstruction, or maintenance.
(c) All persons exercising the right given by this section shall, to the
extent possible, use due care to avoid damage to crops, fences,
buildings, and other structures outside of the right-of-way, and to crops
and approved structures inside the right-of-way. The county surveyor
shall give oral or written notice of the entry on the land to the property
owner of record, and in the case of a municipality, to the executive of
that municipality. The notice must state the purpose for the entry.
(d) The owners of land over which the right-of-way runs may use
the land in any manner consistent with this chapter and the proper
operation of the drain. Permanent structures may not be placed on any
right-of-way without the written consent of the board. Temporary
structures may be placed upon or over the right-of-way without the
written consent of the board, but shall be removed immediately by the
owner when so ordered by the board or by the county surveyor. Crops
grown on a right-of-way are at the risk of the owner, and, if necessary
in the reconstruction or maintenance of the drain, may be damaged
without liability on the part of the surveyor, the board, or their
representatives. Trees, shrubs, and woody vegetation may not be
planted in the right-of-way without the written consent of the board,
and trees and shrubs may be removed by the surveyor if necessary to
the proper operation or maintenance of the drain.
(e) This subsection applies to new regulated drains established after
September 1, 1984, and to urban drains. Except as provided in
subsection (f), the board may reduce the seventy-five (75) foot
right-of-way requirement of subsections (a) and (b) to any distance of
not less than:
(1) twenty-five (25) feet from the top of each bank of an open
ditch; and
(2) fifteen (15) feet from the center line of any tiled drain;
as measured at right angles.
(f) This subsection applies only to a platted subdivision. Upon the
recommendation of the county surveyor, the board may further reduce
the right-of-way for any tiled drain, including a tiled urban drain that
was reduced under subsection (e)(2). However, the board shall not
make a reduction that results in a right-of-way that is:
(1) less than seven (7) feet from each side of the center line as
measured at right angles; or
(2) less than the recommendation made by the county surveyor.
(g) A reduction of a right-of-way under subsection (e) or (f) does
not:
(1) affect a public utility's use of; or
(2) deprive a public utility of the use of;
the right-of-way if, at the time the right-of-way is reduced, the public
utility is occupying and using the right-of-way for the location of the
public utility's structures, including pipelines, electric lines, or any
related structures.
(h) The surveyor, the board, or an authorized representative of the
surveyor or the board acting under this chapter does not commit
criminal trespass under IC 35-43-2-2.
[Pre-Local Government Recodification Citation:
19-4-6-1.]
As added by Acts 1981, P.L.309, SEC.101. Amended by
P.L.206-1984, SEC.3; P.L.76-1989, SEC.6; P.L.145-2013,
SEC.1.