Argyelan v. Haviland, 682S208

• Citation: 435 N.E.2d 973
• Decision Date: 03 June 1982
• Docket Number: No. 682S208,682S208
• Parties: Steve ARGYELAN and Anna Argyelan, Appellants (Defendants Below), v. Harold HAVILAND and Maxine Haviland, Appellees (Plaintiffs Below).
• Court: Supreme Court of Indiana

Page 973

435 N.E.2d 973

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

No. 682S208.

Supreme Court of Indiana.

June 3, 1982.

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

Burton, Lamey & Jensen, Indianapolis, for appellees.

PRENTICE, Justice.

This cause is before us upon the petition of the plaintiffs (appellees) to transfer the cause from the Court of Appeals, Second District, which Court reversed the judgment of the Circuit Court of Marion County awarding damages, but withholding injunctive relief, against Defendants for unlawfully discharging surface water run-off upon the land of Plaintiffs.

The opinion of the Court of Appeals, Second District, correctly followed ruling precedents of this Court; but such ruling precedents appear to be in need of clarification, as evidenced by the opinion of the Court of Appeals, Third District, in the cause entitled Rounds, et al. v. Hoelscher, (1981) handed down December 10, 1981 and published at 428 N.E.2d 1308. In the case at bar, the Court for the Second District correctly recognized and applied the "Common Enemy Rule," whereas the Court for the Third District failed to recognize said rule as the established and prevailing rule and purported to establish as the law of this state that which has come to be known in other jurisdictions as the "Rule of Reasonable Use."

In order to reconcile said conflict, we now grant the petition to transfer, and the decision and opinion of the Court of Appeals, Second District, which appears at 418 N.E.2d 569 is hereby vacated; although the judgment of the trial court is, nevertheless, reversed, because the evidence presented is insufficient to sustain it.

FACTS

The facts of the instant case are not in material dispute. Plaintiffs are the owners of a residential lot improved with a house and two outbuildings. The lot fronts on Auburn Street and faces west. The defendants own a commercial lot which is "L" shaped. The top of the "L" abuts Washington Street, an East-West thoroughfare; the leg abuts Auburn Street, a North-South Street, and the foot is adjacent to, north of and extends the full depth of Plaintiffs' lot.

The elevation of Washington Street is higher than the land of Plaintiffs and Defendants. Surface water drains from Washington Street into Auburn Street and flows southwardly for approximately 1000 feet to a small creek or public drainage ditch. Auburn Street has no ditches or storm sewers, the fall is gentle, and the surface water sometimes overflows into the adjacent yards.

The side of Plaintiffs' lot adjacent to Defendants' lot is its low side, and the lowest point of the lot is at its rear (the easterly end). It is not clear whether the natural drainage of Plaintiffs and Defendants lots prior to Defendants making the alterations hereinafter mentioned, was onto Plaintiffs' lot or onto Defendants' lot. Plaintiff, Mrs. Haviland, testified that prior to Defendants improving their lot, she had never seen surface water drain from the Defendants' lot onto their own and that no consequential amount of surface water had, therefore, puddled or accumulated upon their lot. For purposes of this opinion, therefore, we adopt the view that Defendants' lot was no higher if, in fact, as high as that of the Plaintiffs.

Prior to 1970, Defendants' lot was covered with grass and trees. In 1971, Defendants erected a commercial building on that portion of their lot adjacent to Washington Street; and in 1974, they built another commercial building along the foot of the "L" adjacent to and twenty (20) feet north of the plaintiffs' north line. They also paved, for parking, that portion of the lot not built upon, except for the twenty foot strip adjacent to the plaintiffs' north line. Some fill was used around the building; and, although it is not clear, it appears that Defendants also used substantial fill along the foot of the "L", increasing it as it extended to the toe.

The roof of the more recently constructed of Defendants' buildings is drained by means of three downspouts on the south side of the building. Two of these downspouts empty onto splash blocks at the corners of the building. The third one drains into an underground pipe which carries the water eastwardly to a point twenty feet north of the dividing line and fifty feet west of Plaintiffs' east line, if extended.

Following completion of Defendants' aforementioned improvements, Plaintiffs complained that surface water was draining from Defendants' property onto their property, pooling there and causing substantial damage. Defendants then erected a concrete curbing approximately one foot north of Plaintiffs' north line and extending approximately six inches above the finished grade of Defendants' lot. On the south side, i.e., the plaintiffs' side, the curbing extends approximately eight inches above grade at the west or Auburn Street end and approximately two feet above grade at the east end.

Erection of the curbing, if it alleviated the plaintiffs' surface problem, did not eliminate it. There was testimony that in a sustained rain, water would accumulate behind the curb but eventually flow over it.

Historically, two diametrically opposed but clear rules were consistently followed in the various states with respect to surface water, which must be distinguished from water flowing, even if not continuously, through established and defined channels. Through extensive modifications of both rules, a third doctrine emerged and has been adopted in approximately twenty of the states. These rules, their development and their application are extensively treated and annotated at 93 A.L.R.3d 1193 et seq.

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.

The "civil law" doctrine, on the other hand, proscribes interfering with or altering the flow of surface water.

Both doctrines are harsh but have the common virtue of predictability. Under them, landowners know where they stand. They know what they may do and what they may not do without incurring severe risks. If at times the doctrines work to one's disadvantage, there are other times when he reaps its benefits.

Because of the harshness of both of these rules, various exceptions and limitations have been engrafted upon them in all jurisdictions of the United States. A substantial number of states have permitted but minor modifications, and in such jurisdictions the doctrines are still generally referred to as the "common law doctrine" and the "civil law doctrine," notwithstanding such modifications.

Other jurisdictions, approximately twenty in number, have evolved to or adopted by express design the aforementioned third doctrine now referred to as the "Rule of Reasonable Use."

"The reasonable use rule was apparently first adopted in New Hampshire. Noting the inconvenience which would arise from adopting extreme rules that a landowner has either no right of drainage or an absolute right, the court in Bassett v. Salisbury Mfg. Co. (1862) 43 N.H. 569 (which was apparently primarily concerned with percolating waters), said that the sole ground of qualification of the landowner's right of drainage was the similar rights of others, the extent of the qualification being determined under the rule of reasonable use, and the rights of each landowner being similar and his enjoyment dependent upon the action of the other landowners, so that the rights must be valueless unless exercised with reference to each other. * * *" 93 A.L.R.3d 1193 at 1216.

The common enemy and civil law rules are grounded upon real property concepts. The modifications engrafted upon them resulted from the use of tort law concepts used to mitigate the harsh results of the property law doctrines. The doctrine of "reasonable use," however, goes much further and focuses upon the results of the action and the consequent interference with another's use of his land. Its advantage is flexibility. Its disadvantage, obviously is its unpredictability.

Although Indiana doubtlessly would not permit a malicious or wanton employment of one's drainage rights under the common enemy doctrine, it appears that the only limitation upon such rights that we have thus far judicially recognized is that one may not collect or concentrate surface water and cast it, in a body, upon his neighbor. Cloverleaf Farms, Inc. v. Surratt, (1976) 169 Ind.App. 554, 349 N.E.2d 731 and cases there cited, Gene B. Glick Co., Inc. v. Marion Construction Corp., (1975) 165 Ind.App. 72, 331 N.E.2d 26, reh. denied, 165 Ind.App. 72, 333 N.E.2d 140 and cases there cited.

Plaintiffs acknowledge the rule in Indiana to be as hereinbefore stated. They appear to argue, however, that by a combination of erecting downspouts directed towards the property line, paving a substantial portion of their land and erecting the aforementioned curb or retaining wall along the property line, the defendants somehow exceed the limits of what is permissible in fending off the surface water. It requires no reweighing of the evidence to determine that the evidence does not bear them out. There is simply no evidence that any surface water was ever channeled from Defendants' land onto that of the plaintiffs or cast in a body upon them.

Under the common enemy doctrine, it is not unlawful to accelerate or increase the flow of surface water by limiting or eliminating ground absorption or changing the grade of the land. These two things, we may concede, are shown by the evidence to have resulted from Defendants' improvements. However, the only evidence that water from the defendants' premises entered...