Foreman v. State ex rel. Dept. of Natural Resources

• Citation: 387 N.E.2d 455,180 Ind.App. 94
• Decision Date: 29 March 1979
• Docket Number: No. 2-177A23,2-177A23
• Parties: Charles E. FOREMAN and Soucie Construction Company, Inc., Appellants (Defendants Below), v. STATE of Indiana on the relation of the DEPARTMENT OF NATURAL RESOURCES, Appellee (Plaintiff Below).
• Court: Court of Appeals of Indiana

Page 455

387 N.E.2d 455

180 Ind.App. 94

Charles E. FOREMAN and Soucie Construction Company, Inc. Appellants (Defendants Below), v. STATE of Indiana on the relation of the DEPARTMENT OF NATURAL RESOURCES, Appellee (Plaintiff Below).

No. 2-177A23.

Court of Appeals of Indiana, Fourth District.

March 29, 1979.

Arthur J. Sullivan, Ruth E. Myer, Steers, Sullivan, McNamar & Rogers, Indianapolis, for appellants.

Theodore L. Sendak, Atty. Gen. of Indiana, Wesley T. Wilson, Deputy Atty. Gen., Indianapolis, for appellee.

YOUNG, Judge.

Charles E. Foreman and Soucie Construction Company (appellants-defendants) appeal from a judgment of the trial court finding that they had unlawfully obstructed a floodway of the White River in Marion County.

The State of Indiana by the Department of Natural Resources (State) sought an injunction prohibiting appellants-defendants from making deposits on the Floodway of the White River. ¹ The State also sought removal of deposits previously made. Appellants-defendants answered and counterclaimed alleging that the State was claiming a Flood easement, and as such the State was condemning the real estate in question. The trial court ordered the counterclaim of inverse condemnation stricken. Trial was had to the court with a judgment ² entered for the State.

The issues presented for review framed by the appellants-defendants are as follows:

1. Whether or not the trial court erred in striking defendants' counterclaims in inverse condemnation?

2. Whether or not the court erred in rejecting defendants' argument that the Flood Control Act ³ is unconstitutional, at least as it has been applied in the present instance?

3. Whether or not the court erred in overruling the motion made by defendants' counsel for Involuntary Dismissal under Ind.Rules of Procedure, Trial Rule 41(B), which was made at the conclusion of plaintiff's case?

4. Whether the trial court's judgment ordering defendants "to restore east bank of said river (White River) on their property to condition it was in prior to construction of roadway" and "to cease depositing materials in floodway forthwith" is supported by sufficient evidence and not contrary to law?

I.

Appellants argue that the State by seeking to enjoin appellants from depositing material in the floodway of White River is attempting to acquire lands for public use. Appellants' reason that this is a taking of a flood easement and as such they must be compensated in accord with the eminent domain power and procedures of the State.

The determination of whether there has been a taking requires an examination of the Flood Control Act (Act). IC 1971, § 13-2-22-1 to -20 (Burns 1973). We are bound by the principle of statutory construction that the intent of the legislature is to be gleaned from the statute read as a whole, and not from any section or portion thereof taken piecemeal. Each part must be considered with reference to all other parts. Walgreen Co. v. Gross Income Tax Division (1947), 225 Ind. 418, 75 N.E.2d 784; Ernst & Ernst v. Underwriters National Assurance Co. (1978), Ind.App., 381 N.E.2d 897.

The sections relevant to this appeal are described or quoted below. Section 3 provides the following definitions:

"(8) 'Flood' or 'flood water' means the water of any river or stream in the state of Indiana or upon or adjoining any boundary-line of the state of Indiana, which is above the bank and/or outside the channel and banks of such river or stream; and also means the water of any lake which is above and outside the banks thereof (9) 'Flood flow' means all of the water of a river or stream that exceeds the within bank channel flow of the river or stream;

(10) 'Channel' means either the natural or artificial channel of a river or stream;

(11) 'Flood plains' means the area adjoining the river or stream, which has been or may be hereafter covered by flood water;

(12) 'Floodway' means the channel of a river or stream and those portions of the flood plains adjoining the channel, which are reasonably required to efficiently carry and discharge the flood water or flood flow of any river or stream;

(13) 'Commission floodway' means a floodway designated and established by order of the commission, fixing its length and landside limits;

(14) 'Flood control' means the prevention of floods, the control, regulation, diversion or confinement of flood or flood flow, and the protection therefrom, according to sound and accepted engineering practice, to minimize the extent of floods, and the death, damage and destruction caused thereby, and, all things incidental thereto or connected therewith;

(15) 'Flood easement' means an easement on property to be inundated or covered by water;"

Section 9 provides that when land is taken, it shall be approved by the attorney-general and taken in the name of the State. Section 10 provides the procedure for such a taking. Section 13 defines the nuisances which the commission has the power to seek to enjoin, specifically making it unlawful to make a deposit in or on any floodway. Further, § 20 gives the commission the power to maintain an action to enjoin any violation of the Act.

We cannot agree with appellant's Conclusion that the State is seeking a flood easement. No easement was sought by the State in its complaint, nor was evidence at trial admitted to show that an easement was sought. Further, a careful reading of the definitions set out above distinguishes appellant's argument. A flood easement contemplates the taking of an interest in property so that an area may be covered or inundated by water. For example, if the State needs to regulate flowage by damming a river and thereby creating a lake or reservoir of some type, they would be required to take or condemn the land because they would be preventing any use by anyone other than themselves. Here they are not seeking an interest in land, but merely seeking to control the use of the land so as to prevent damage to the public. See zoning discussion Infra. The Act also sets out two types of floodways. First, there is a floodway determined by what is reasonably required to efficiently carry and discharge the floodwater of any stream and second, there is a commission floodway which is designated by order of the commission establishing the dimensions thereof. The former must be considered applicable in this case because no commission floodway was designated concerning the area in controversy. Appellant correctly asserts that no evidence was admitted to show that the commission had established a floodway under IC 1971, 13-2-22-14. Such a showing was not required because of the differing types of floodways.

The legislature has further provided remedies to give effect to the Act. The two remedies which are involved in this matter are condemnation and maintenance of an action to enjoin or abate. Section 19 authorizes the State, through its power of eminent domain to purchase lands, easements, flood easements or other interest therein, or other property or right. Appellants-defendants seek the inverse application of this power. Section 13 declares it unlawful

"to erect, use or maintain in or on any floodway, a permanent abode or place of residence, or to erect, make, use or maintain any structure, obstruction, deposit or excavation in or on any floodway, or to suffer or permit any structure, obstruction, deposit or excavation to be erected, made, used or maintained in or on any floodway, which will adversely affect the efficiency of or unduly restrict the capacity of the floodway or which, by virtue of its nature, design, method of construction, state of maintenance or physical condition, will constitute an unreasonable hazard to the safety of life or property, or result in unreasonably detrimental effects upon the fish, wildlife and botanical resources and the same are declared to be and to constitute public nuisances."

It further provides the remedy of enjoining the nuisance as follows:

"The commission shall have the power to commence, maintain and prosecute any appropriate action to enjoin or abate a nuisance, including any of the foregoing nuisances and any other nuisance which adversely affects flood control or the safety of life or property, or is unreasonably detrimental to fish, wildlife and botanical resources."

For the purpose of Removing or eliminating any such structure, one remedy is condemnation as provided in this same section. We are of the opinion that this provides for structures existing prior to and at the time of the passage of the Act. The general power to seek injunctive relief by abatement as specifically provided by § 20 or § 13 was proper here.

Appellants-defendants argue that Foreman acquired the land prior to the passage of the Act and therefore the State must condemn the land in question. This contention is erroneous. The deposit in the floodway was not made until after the passage of the Act and then without the requisite permit. IC 1971, 13-2-22-13. The State sought and the trial court ordered that the area be restored to the condition as existed prior to the construction of the deposit-roadway, which was about 1970.

Another consideration examined in construing a statute is giving effect to the purpose or harm to be eliminated. Public Service Co. v. Knox County Rural Electric Membership Corp. (1976), Ind.App., 354 N.E.2d 301. The stated purpose of the Act here is the prevention of damage by flooding. IC 1971, § 13-2-22-2 (Burns Code Ed.). Clearly then the problem to be remedied is the creation of structures or deposits in the floodways, without a permit under § 13, which endanger the public. The only effective remedy is an injunction to compel removal of offending (within the Act) structures. To deny such power is an illogical interpretation of the Act. It places an insurmountable obstacle in the path of the State. Such an interpretation also places a tremendous financial burden on the State. Anyone who builds first without a permit and...