Argyelan v. Haviland

• Decision Date: 13 April 1981
• Docket Number: No. 2-1179A334,2-1179A334
• Citation: 418 N.E.2d 569
• Parties: Steve ARGYELAN and Anna Argyelan, Appellants (Defendants Below), v. Harold HAVILAND and Maxine Haviland, Appellees (Plaintiffs Below).
• Court: Indiana Appellate Court

Page 569

418 N.E.2d 569

Steve ARGYELAN and Anna Argyelan, Appellants (Defendants Below), v. Harold HAVILAND and Maxine Haviland, Appellees (Plaintiffs Below).

No. 2-1179A334.

Court of Appeals of Indiana, Second District.

April 13, 1981.

R. Victor Stivers & Associates, Indianapolis, for appellants.

Burton Lamey & Jensen, Indianapolis, for appellees.

BUCHANAN, Chief Judge.

CASE SUMMARY

Appellants-defendants Steve and Anna Argyelan (Argyelans) appeal from a $7,500 judgment in favor of appellees-plaintiffs Harold and Maxine Haviland (Havilands), claiming the decision of the trial judge is not supported by Indiana law governing disposal of surface waters.

We reverse.

FACTS

The evidence and facts most favorable to the trial court's judgment are:

In early 1970, the Argyelans (Defendants-Appellants) bought about two acres of land located in the 4900 block of West Washington Street in Indianapolis. The land is bounded on the south by the property of the Havilands (Plaintiffs-Appellees). At the time of purchase, the two lots comprising the Argyelans' parcel were wooded with no buildings on them, although previously there had been a large two-story house.

Soon after the land was purchased, Steve Argyelan had the lot farthest from the Havilands rezoned from a residential to a business classification. Following that rezoning, a building which was completed in 1971 was built on the lot. In 1973 Argyelan rezoned and started building a structure (the second building) on the southern portion of his property. That building was completed in 1974.

In improving his land, Argyelan raised the level of the soil about two feet by adding fill and erecting a two-foot high retaining wall about one foot on his side of the Haviland/Argyelan property line. Later, a chain link fence was built on top of that retaining wall. The top of the retaining wall was constructed to stand about four inches higher than the ground on Argyelans' side, but stood from 6 -8 to 2'-21/2' higher than the Havilands' grounds.

The exhibits indicate that the second building is a one-story brick structure with its southern wall at least twenty feet from the retaining wall. Three downspouts provide drainage for the roof, two of them terminating in standard downspout footings which point south towards the Haviland property; the third was diverted through a plastic pipe to the east, terminating 50' from the eastern property line, and about twenty feet from the southern line with the Havilands' property. The record discloses nothing unusual about the downspout footings. The twenty-foot strip of land lying between the building and retaining wall is crushed stone, which allows percolation of water. The balance of Argyelans' lot is blacktopped; natural drainage is to the south and east.

Following completion of the second building, the Havilands complained that their ground near the boundary with the Argyelans was being submerged by several inches of water after a moderate to hard rain. Uncontroverted testimony indicates that when there is enough rain to fill the four-inch space on Argyelans' side of the wall, water would wash over it onto Havilands' property. Plaintiffs claim that such overflow caused damage to their garage and a utility shed.

Because of a generalized drainage problem in the neighborhood, the City of Indianapolis offered to meet with residents to discuss construction of a drainage ditch. Apparently the meeting was never held due to lack of interest.

The Havilands sued the Argyelans, alleging they accumulated and discharged large quantities of water onto their land, asking for $15,000 damages and injunctive relief.

A bench trial was held in Marion County Circuit Court resulting in judgment for the plaintiffs in the amount of $7,500.

The Argyelans appeal.

ISSUE

The sole issue is:

Is an owner of improved land liable to an adjacent landowner for damage caused by run-off of surface water caused in part by improvements to the land, even though there is no direct channeling of water onto the adjacent parcel?

DECISION

CONCLUSION It it our conclusion that, considering the evidence most favorable to the judgment, the Argyelans were not liable for damage caused by the surface water run-off from their land.

The record in this case contains no findings of fact. "Where no findings are made the general judgment entered by the court is presumed to be based upon findings supported by the evidence." Ray v. Goldsmith (1980), Ind.App., 400 N.E.2d 176. Unfortunately the evidence most favorable to the judgment does not support it.

Indiana follows the "common enemy rule" governing surface waters which has been defined thusly:

(A) lower property owner may dam against such water to prevent it from entering onto his land and ... cannot be held liable for damages resulting from the accumulation of water above the obstruction or because such obstruction causes the water to flow onto the land of another. Watts v. Evansville, Mt. Carmel and Northern Railway Co. (1921), 191 Ind. 27, 129 N.E. 315; Gwinn v. Myers (1955), 234 Ind. 560, 129 N.E.2d 225; Capes v. Barger (1953), 123 Ind.App. 212, 109 N.E.2d 725; Thompson v. Dyar (1955), 126 Ind.App. 70, 130 N.E.2d 52; Lowe v. Loge Realty Co., Inc. (1966), 138 Ind.App. 434, 214 N.E.2d 400. The only limitation outlined in the above cases is that a landowner may not collect surface water into a body and then discharge it on to another's land.

Cloverleaf Farms, Inc. v. Surratt (1976), Ind.App., 349 N.E.2d 731, 732 (Emphasis added). Accord, Gene B. Glick Co., Inc. v. Marion Construction Corp. (1975), 165 Ind.App. 72, 331 N.E.2d 26, reh. denied 333 N.E.2d 410.

The origin of the rule is obscure. One commentator lays the blame for the doctrine's unique name upon a confused New Jersey court, which misquoted an early English opinion referring to "the sea (as) a common enemy." ¹ The rule has only been applied to surface water. "The law has wisely discriminated between the rules which apply to watercourses, and those which apply to surface water." Taylor v. Fickas (1878), 64 Ind. 167, 176.

The situation before us involves the flowage of surface water as defined in Capes v. Barger (1953), 123 Ind.App. 212, 109 N.E.2d 725:

Water from falling rains or melting snows which is diffused over the surface of the ground or which temporarily flows upon or over the surface as the natural elevations and depressions of the land may guide it but which has no definite banks or channel, is surface water.

Id. at 726. See also Gwinn v. Myers (1955), 234 Ind. 560, 129 N.E.2d 225; Taylor v. Fickas, supra.

One hundred years ago in a case involving surface water, the Indiana Supreme Court observed:

It is difficult to invent a formula for the statement of a rule of law which will accurately express the rule in its application to varying circumstances; and it may be that there is some verbal inconsistency in the formulas quoted from these opinions of this court, but when applied to the subject-matter of each there is no inconsistency of principle involved or expressed.

Cairo & V. R. Company v. Stevens (1881), 73 Ind. 278, 283.

We agree that "verbal inconsistencies" may obscure the true parameters of a rule of law, and the intervening century of case law on the subject of surface waters emphasizes the accuracy of the above quotation. As the court did in Cairo, supra, it is important to pay heed to the exact circumstances of the factual situations presented in the case law rather than the sometimes imprecise terminology used. Thus, we proceed to review the cases ever mindful of our limited standard of review. T.R. 52(A).

The record in this case gives no indication whatsoever of the existence of any ditches, flumes, or direction of freshets. Appellees' reliance on Gene G. Blick Company, Inc. v. Marion Construction Corporation, supra, is thus misplaced. That case featured "concentrated flowage" to various points along the property line, conducted there by channels and ditches. By way of dicta the Glick court described a situation in which liability could not be imposed:

While we do not find that Glick is liable for any increase in quantity of discharge, or the fact that discharge per se is improper, we do find that there is liability for any damage which may result from the concentrated discharge of waters upon land.

Id. at 32, emphasis in original.

Glick featured a concentrated discharge of water markedly contrasting with the type of discharge revealed by the record in this case. Here, the most favorable evidence shows water came over the retaining wall "like a waterfall." (R. at 118). Such wash is simply not the same thing as the concentrated channelling caused by a ditch. As the court said in Glick, discharge per se is not improper.

Another case in accord with Glick and the case law as we understand it, is Cloverleaf Farms, supra. There, the court reversed the trial court's judgment for plaintiffs stating that its conclusion was buttressed by "the absence of any proof that Cloverleaf collected surface water and propelled it in a body onto Surratt's property." Id. at 732. An affirmative, tortious act at the physical point of discharge was thus required to destroy the tort immunity conferred by the common enemy rule.

Similarly, Smith v. Atkinson (1962), 133 Ind.App. 430, 180 N.E.2d 542, is not applicable on its facts. That case also dealt with the obstruction of a watercourse and the enlargement of the flood-plain it served.

Although the Argyelans built a small retaining wall near their boundary, there were no cuts through the top of that parapet. Its effect, therefore, was to protect the Haviland property from water flowage, by distributing the flowage uniformly across the property line at least until the four-inch space on the Argyelan side filled up. In order to impose liability for surface water discharge, it must be collected on the defendant's land and "poured" meaning in a concentrated volume onto the plaintiff's land. Mitchell v....