Fairwood Bluffs Conservancy Dist. v. Imel, No. 1267A117

Docket NºNo. 1267A117
Citation146 Ind.App. 352, 20 Ind. Dec. 362, 255 N.E.2d 674
Case DateMarch 03, 1970
CourtCourt of Appeals of Indiana

Page 674

255 N.E.2d 674
146 Ind.App. 352
FAIRWOOD BLUFFS CONSERVANCY DISTRICT, Ray Wood, Samuel Hiles
and Keith Jones, as Directors of Fairwood Bluffs
Conservancy District, Appellants,
v.
Lee B. IMEL, Audra O. Imel, Appellees.
No. 1267A117.
Appellate Court of Indiana, Division No. 1.
March 3, 1970.

[146 Ind.App. 353]

Page 676

Paul W. Kelley, Kelley, Arnold & Kelley, Anderson, for appellants.

Robert L. Austin, Busby, Austin, Cooper & Farr, Anderson, for appellees.

SULLIVAN, Judge.

STATEMENT OF FACTS

On April 22, 1963, plaintiffs, Lee B. Imel and Audra O. Imel, filed this suit against the defendants, Fairwood Bluffs Conservancy District, and Ray Wood, Wash Dean [146 Ind.App. 354] and Samuel Hiles to; (1) rescind and cancel an easement, (2) abate a nuisance, and (3) recover damages arising out of the surface water and sanitary drain which ran across the Imels' real estate. Trial to the court resulted in a finding that the nuisance could not be abated. A judgment for damages was awarded in favor of the Imels in the sum of Thirty-Five Thousand Dollars.

The Imels are residents of Madison County, Indiana, and own nine acres of real estate in said County, bounded on the south by White River. Situated upon the real estate are the Imels' dwelling house another dwelling house and a barn. The defendant, Fairwood Bluffs Conservancy District, was organized under the Acts of the Indiana General Assembly of 1947, ch. 239, as amended.

On April 14, 1953, the Imels entered into a written right-of-way easement, the terms of which granted the Conservancy District an easement across the previously mentioned read estate, for the purpose of constructing and maintaining thereon an enclosed sanitary sewer consisting of a 12 inch tile, together with an open storm water overflow, which consisted of an open ditch generally following the course of an old canal across the Imels' real estate to White River. At the time such easement was granted to the Conservancy District, the Imels were told that the excess storm water drain would never carry a large volume of water, would not damage their real estate, and would never carry any raw sewage or waste. The Conservacy District then consisted of an area of approximately 615 acres, which was divided into approximately 1400 lots and the area was less than 50% improved.

After the completion of the sanitary sewer and storm water overflow in 1954, there was much additional building and construction within the Conservancy District. By the year 1959, such volumes of water were being discharged into and upon the open storm water drain that trees growing nearby were damaged, banks were washed out and eroded, and pools [146 Ind.App. 355] were formed alongside the open storm water drain. Raw sewage as well as other domestic waste matter which emitted noxious and offensive odors was being deposited upon the real estate of the Imels. The Imels were thus compelled to keep all windows and doors closed in their home and were finally forced to leave their place of residence.

On November 30, 1960, a suit (which the Conservancy District asserts acts as a bar to the instant suit) was filed in the Superior Court of Madison County. The plaintiffs in the 1960 suit were Lee B. Imel and Audra O. Imel, appellees here. The defendants were Fairwood Bluffs Conservancy District; Ray Wood, Wahn Dean and Samuel Hiles, as Directors of Fairwood Bluffs Conservancy District; and Martin Milling, Individually and as Agent and Engineer for Fairwood Bluffs Conservancy District. The 1960 suit was predicated upon fraud and misrepresentation on the part of the defendants in obtaining the easement in question and sought (1) to rescind and cancel the easement, (2) to recover compensatory damages, and (3) to recover punitive damages. On March 20, 1963, Special Findings of Fact and Conclusions of Law were entered by the Court stating that the evidence did not prove fraud on the part of defendants and that the plaintiffs were not entitled to relief upon the theory set forth in their complaint.

Thereafter, on April 22, 1963, the instant suit was filed. In October of 1963,

Page 677

the defendants filed 'A Plea In Bar--Former Adjudication' asserting:

'(1) That on the 30th day of November, 1960, plaintiffs brought their action in Superior Court #2 in Madison County, Indiana, being cause #2S60/632 against the defendants on the identical cause of action set forth in the complaint herein, or could have been adjudicated in the former action.

'(2) That such proceedings were had in said cause. That on the 20th day of March, 1963, judgment was rendered by said court on all the merits of said cause against the plaintiffs and said defendant for costs.'

[146 Ind.App. 356] On March 4, 1964, the plaintiffs filed a memorandum addressed to the defendants' assertion of 'former adjudication.' Copies of the complaint and of the Special Findings of Fact and Conclusions of Law from the 1960 suit were included in the memorandum. On the same day, March 4, 1964, the court made the following Order Book entry:

'And comes now the Court and sustains defendants' plea in bar.

'IT IS, THEREFORE, CONSIDERED, ORDERED, ADJUDGED, AND DECREED by the Court that the plaintiffs be and they are hereby ordered to pay the costs of this action herein laid out and expended, taxed at $_ _

'ALL OF WHICH IS FULLY AND FINALLY ADJUDGED AND DECREED BY THE COURT.'

On April 9, 1964, the court, apparently upon its own motion, modified the March 4, 1964, entry as follows:

'Comes now the Court and the record of March 4, 1964, is modified in that the plaintiffs are ordered to amend their complaint on the theory of nuisance and to strike out all other allegations sounding in recission and cancellations.'

Thereafter, the plaintiffs filed an amendment complaint and the defendants filed a Motion for Change of Judge, an Answer in three paragraphs and a Motion for Change of Venue from Madison County. The cause was venued to the Henry Circuit Court and tried upon the issues joined by plaintiffs' amended complaint and the defendants' answer thereto.

The Henry Circuit Court made the following conclusions of law:

'1. The law is with the plaintiffs.

'2. The acts of defendant Fairwood Bluffs Conservancy District constitute a nuisance.

'3. The nuisance cannot be abated, and the plaintiffs are entitled to recover as damages the amount of the loss of the fair market value of plaintiffs' real estate caused by the acts of the defendant Fairwood Bluffs Conservancy District creating such nuisance, and that the loss of fair market value of plaintiffs' real estate caused thereby is $35,000.00.

[146 Ind.App. 357] '4. That the judgment entered in the Superior Court of Madison County #2 by the Honorable George B. Davis, as Special Judge, in a cause entitled Lee B. Imel and Audra O. Imel vs. Fairwood Bluffs Conservancy District, Ray Wood, Wahn Dean and Samuel Hiles, as Directors of Fairwood Bluffs Conservancy District; and Martin Milling, individually and as agent and engineer for Fairwood Bluffs Conservancy District, is not a prior adjudication of the same cause of action, and does not constitute a bar against plaintiffs maintaining this cause of action, and is not a defense to this cause of action.

'5. That the entry of the Superior Court of Madison County in this cause of action on March 4, 1964, does not constitute a prior adjudication of this cause against the plaintiffs.

'6. That the plaintiffs should have judgment against the defendant Fairwood

Page 678

Bluffs Conservancy District in the sum of $35,000.00 and costs of this action.'

Appellant, Conservancy District, argues here that the judgment of the Henry Circuit Court should be reversed because; (1) the doctrine of res judicata precludes the 1963 action, (2) the entry of the Superior Court of Madison County on March 4, 1964, constitutes a 'prior adjudication; of the cause against plaintiffs, (3) the Conservancy District is immune from tort liability under the doctrine of sovereign immunity.

APPELLEES' MOTION TO DISMISS OR AFFIRM ALLEGING NONCOMPLIANCE BY APPELLANTS WITH INDIANA SUPREME COURT RULE 2--17 IS OVERRULED

On September 16, 1968, this Court entered an order whereby appellees' motion to dismiss or in the alternative to affirm was held in abeyance pending oral argument and consideration of the cause upon its merits. Said motion by appellees alleges that appellants' brief indicates the lack of a good faith effort to substantially comply with Supreme Court Rule 2--17. Appellees first contend that appellants' brief does not set forth appellees' complaint, appellants' answer or the substance thereof. Under the most broad and liberal construction of [146 Ind.App. 358] Rule 2--17, we might hold that appellants' paraphraising of its answer meets the minimum requirements of said rule. However, appellants' purported paraphrasing of appellees' amended complaint can by no stretch of the imagination be deemed a good faith or substantial compliance with the rule. Appellees' actual amended complaint in this cause as set forth verbatim in appellees' answer brief, contains factual allegations which give the required shape and dimension to the broadly stated nuisance theory of said complaint.

Since one of appellants' substantive arguments is that the 1960 action by appellees premised upon fraud and misrepresentation is res judicata, it is essential that the amended complaint in the instant suit, as well as said earlier complaint, be before us at least in substance. In no other way is it possible to adequately and properly determine whether, as argued by appellants, the present cause for abatement of a nuisance was or could have been adjudicated in the prior action.

Appellees, in their brief, have set forth the instant complaint verbatim and appellants' brief contains the complaint in the 1960 action.

By reason of the well-established principle that we will, whenever possible, dispose of appeals upon their merits we will not further discuss...

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20 practice notes
  • Board of Com'rs of Howard County v. Kokomo City Plan Commission, No. 2-473A88
    • United States
    • Indiana Court of Appeals of Indiana
    • May 20, 1974
    ...235 Ind. 641, 136 N.E.2d 17; Willsey v. Hartman (1971) Ind.App., 269 N.E.2d 172; Fairwood Bluffs Conservancy District v. Imel (1970) 146 Ind.App. 352, 255 N.E.2d For the reasons elucidated above, we proceed to the substance of this case. II MUNICIPAL PLANNING AND ZONING AS VALID DELEGATION ......
  • Gose v. Monroe Auto Equipment Co., Docket Nos. 60752
    • United States
    • Supreme Court of Michigan
    • June 27, 1980
    ...would have merged with a favorable judgment of a partnership based on the same services. Fairwood Bluffs Conservancy District v. Imel, 146 Ind.App. 352, 255 N.E.2d 674 (1970), concerned an easement for a sanitary sewer which overflowed onto the Imels' property. After failing in an action al......
  • Thibodeau v. Foremost Ins. Co., Cause No. S 82-503.
    • United States
    • United States District Courts. 7th Circuit. United States District Court of Northern District of Indiana
    • January 18, 1985
    ...See, e.g., Peterson v. Culver Educational Foundation, Ind.App., 402 N.E.2d 448, 461 1980; Fairwood Bluffs Conservancy Dist. v. Imel, 146 Ind.App. 352, 255 N.E.2d 674 1970. Further, as a general rule, only one cause of action arises from the breach of a contract and where an action is brough......
  • State, Indiana State Highway Commission v. Speidel, No. 2-877A300
    • United States
    • Indiana Court of Appeals of Indiana
    • July 24, 1979
    ...handed down June 25, 1979); Nichols v. Yater (1970), 147 Ind.App. 29, 258 N.E.2d 66; Fairwood Bluffs Conservancy Dist. v. Imel (1970), 146 Ind.App. 352, 255 N.E.2d 674; 50 C.J.S. Judgments § In determining whether only a single cause of action exists, the test is whether identical evidence ......
  • Request a trial to view additional results
20 cases
  • Board of Com'rs of Howard County v. Kokomo City Plan Commission, No. 2-473A88
    • United States
    • Indiana Court of Appeals of Indiana
    • May 20, 1974
    ...235 Ind. 641, 136 N.E.2d 17; Willsey v. Hartman (1971) Ind.App., 269 N.E.2d 172; Fairwood Bluffs Conservancy District v. Imel (1970) 146 Ind.App. 352, 255 N.E.2d For the reasons elucidated above, we proceed to the substance of this case. II MUNICIPAL PLANNING AND ZONING AS VALID DELEGATION ......
  • Gose v. Monroe Auto Equipment Co., Docket Nos. 60752
    • United States
    • Supreme Court of Michigan
    • June 27, 1980
    ...would have merged with a favorable judgment of a partnership based on the same services. Fairwood Bluffs Conservancy District v. Imel, 146 Ind.App. 352, 255 N.E.2d 674 (1970), concerned an easement for a sanitary sewer which overflowed onto the Imels' property. After failing in an action al......
  • Thibodeau v. Foremost Ins. Co., Cause No. S 82-503.
    • United States
    • United States District Courts. 7th Circuit. United States District Court of Northern District of Indiana
    • January 18, 1985
    ...See, e.g., Peterson v. Culver Educational Foundation, Ind.App., 402 N.E.2d 448, 461 1980; Fairwood Bluffs Conservancy Dist. v. Imel, 146 Ind.App. 352, 255 N.E.2d 674 1970. Further, as a general rule, only one cause of action arises from the breach of a contract and where an action is brough......
  • State, Indiana State Highway Commission v. Speidel, No. 2-877A300
    • United States
    • Indiana Court of Appeals of Indiana
    • July 24, 1979
    ...handed down June 25, 1979); Nichols v. Yater (1970), 147 Ind.App. 29, 258 N.E.2d 66; Fairwood Bluffs Conservancy Dist. v. Imel (1970), 146 Ind.App. 352, 255 N.E.2d 674; 50 C.J.S. Judgments § In determining whether only a single cause of action exists, the test is whether identical evidence ......
  • Request a trial to view additional results

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