Gene B. Glick Co., Inc. v. Marion Const. Corp.

• Citation: 331 N.E.2d 26,165 Ind.App. 72
• Decision Date: 15 July 1975
• Docket Number: No. 1--375A46,1--375A46
• Parties: GENE B. GLICK COMPANY, INC., et al., Appellants (Defendants below), v. MARION CONSTRUCTION CORP., and Edwin M. Ransburg, Appellees (Plaintiffsbelow). GENE B. GLICK COMPANY, INC., et al., Appellants (Defendants below), v. Edwin M. RANSBURG, Appellee (Plaintiff below).
• Court: Court of Appeals of Indiana

Page 26

331 N.E.2d 26

165 Ind.App. 72

GENE B. GLICK COMPANY, INC., et al., Appellants (Defendants below), v. MARION CONSTRUCTION CORP., and Edwin M. Ransburg, Appellees

(Plaintiffsbelow).

GENE B. GLICK COMPANY, INC., et al., Appellants (Defendants below), v. Edwin M. RANSBURG, Appellee (Plaintiff below).

No. 1--375A46.

Court of Appeals of Indiana, First District.

July 15, 1975.

Gene E. Wilkins, Bamberger & Feibleman, Indianapolis, for appellants

John E. Hurt, NcNutt, Hurt & Blue, Martinsville, Richard L. Gilliom, Stewart, Irwin, Gilliom, Fuller & Meyer, Indianapolis, for appellees.

LOWDERMILK, Judge.

The factual and legal history of this appeal stretches back over a period of more than sixteen years. The principal parties to this appeal were and are adjoining landowners in Marion County, Indiana. The defendant-appellants (hereinafter collectively referred to as 'Glick') own and have developed the greater portion of the land which is situated immediately to the north, northeast, and northwest of the Ransburg property, with the construction of numerous residential subdivisions. The problems raised in this appeal are based on the fact that the Glick property occupies a topographically higher position than does the Ransburg tracts. ¹ The tract of land immediately adjacent to Glick's property is owned individually by Ransburg. The remaining portion is owned by Marion Construction Corp. and Ransburg owns all of the corporate stock. As a result, the Ransburg property lies directly in the path of the overland drainage for the upper watershed area.

As the Glick houses replaced existing woods and fields, engineers found it necessary to redirect the natural flow of surface waters in order to fully develop the area. By a series of interconnected open ditches and subterranean storm sewers, various Glick-controlled companies and/or subcontractors thereof established a drainage system In early 1959 it was discovered that an open ditch approximately six feet deep and three hundred feet long had been gouged into Ransburg's land along the northeast property line. This ditch was begun, however, only after a fence on the Ransburg property had been cut, and several hundred young trees destroyed. This ditch was later lengthened to an ultimate length of 525 feet and was connected to the north branch of Pleasant Run Creek, which began at a broken field tile some 50 feet inside the east line or Ransburg's property. Although it is unclear who ordered the digging of the ditch, there is evidence that the work was performed by a subcontractor of a Glick-controlled company.

that ultimately vented at the southeast corner of the Glick properties. Unfortunately, this southeast corner was also the northeast corner of the Ransburg property.

Sometime shortly after Ransburg discovered the digging, a letter of protest was issued to Glick. Apparently, Glick then sought permission to refill the ditch on the Ransburg property, but only after he had acquired a strip of land fifty foot wide which ran north and south along the northeast line of the Ransburg property.

On September 22, 1959, the original complaint in this action was filed, Ransburg seeking injunctive relief and damages. In October of the same year, Ransburg informed Glick by letter that, without a waiver of any rights, the ditch could be filled under certain specifications. Glick then proceeded to dig a ditch on the newly acquired strip of land and use the soil excavated therefrom to fill the ditch on Ransburg's property. However, when the work was completed only the northern 300 feet of the Ransburg ditch was filled, and the new ditch was connected to the southernmost 225 feet of the Ransburg ditch.

After the filing of numerous motions and other matters the complaint was amended in 1965, adding parties and requesting additional damages. Also in that year the cause was venued to the Morgan Circuit Court.

Several other matters of significance should be noted at this point. In the 1960s construction of I--465 was completed immediately east of the properties involved. In connection with the construction of the highway, Ransburg allowed a contractor to excavate soil (borrow) in an amount sufficient to create a seven acre pond on the southern portion of the Ransburg property. The evidence most favorable to Ransburg is that he permitted this excavation, both to receive compensation for the borrow and to create the pond in order to alleviate flooding conditions on his property.

Finally, in 1966, in connection with the removal of the borrow, the southernmost portion of Pleasant Run Creek was moved to an artificial channel which ran north and south (for the most part) along the east property line of the Ransburg tract. This new channel ultimately connected with the ditch, dug by Glick, which entered the Ransburg tract some 300 feet south of the north line of the Ransburg property.

The matter was finally brought to trial June 10, 1974, and during the course of the proceedings, the present appellants were substituted for the original defendants below. The trial court found for Ransburg and Marion Construction Company, and awarded damages of $10,000.00 and $50,000.00 respectively. No injunctions were issued.

I.

The first set of arguments concern the obligations of each party in handling surface water problems, and the right of each party to make use of an existing waterway.

Glick's initial argument in this regard is that an ordinance adopted by the Metropolitan Plan Commission in 1958 requires Ransburg to certify to the Commission that any planned development includes a drainage system adequate to handle storm water run-off from developed upper watershed In response to this argument, Ransburg does not deny that he would have to comply with the ordinance. However, Ransburg contends that had Glick complied with the same ordinance, the cost of his compliance would be much less.

areas. Thus, Glick contends that if Ransburg had developed his property first, he would still have had to provide drainage adequate to handle run-off should the upper watershed be later developed. Therefore, it is Glick's contention that he cannot be held liable for the cost of constructing a drainage system which Ransburg, should he have chosen to build, would have had to supply even if the upper watershed were completely undeveloped.

In addition, Ransburg argues that the ordinance does not state that one must develop his land. Thus, it is contended that inasmuch as the area need not be developed at all, Glick cannot rely on the statute to compel Ransburg to provide a drainage system which is sufficient to handle drainage from the Glick areas.

The ordinance in question was approved by the Metropolitan Plan Commission on September 30, 1958, and adopted by the Marion County Council November 3, 1958. ²

The particular section in dispute is as follows:

'd. Open Ditch Drainage

(1) plan for proposed system of drainage on a topographic base, spot elevations and grade on flow lines, elevation and details of all culverts, pipes, intersectional drains, drop inlets, bridge headwalls and similar or related necessary drainage instalations.

(4) certification by a registered professional engineer or registered land surveyor that all proposed drainage improvements and structures are adequataely designed to safely handle surface drainage from upper watershed area when such upper watershed area shall have been developed for maximum land use permitted under the existing zoning classifications applicable to said area at the time of said certification.'

In considering the effect of this ordinance upon the parties, we apply the same rules of construction as are used when a statute is involved. Zorger v. City of Greensburgh (1877), 60 Ind. 1; Woerner, etc. v. City of Indianapolis (1961), 242 Ind. 253, 177 N.E.2d 34. Our duty in this regard is well summarized in the case of State ex rel. Bynum v. LaPorte Superior Court No. 1 (1973), Ind., 291 N.E.2d 355, 356:

'. . . None will dispute that in construing statutes, it is our duty to give effect to the plain and manifest meaning of the language used. This requires no citation of authority. In cases of ambiguity, we must search for legislative intent. If more than one construction is possible, the court may consider the consequences of a particular construction. (Cases cited omitted.) A consideration of attendant evils may properly influence the construction in such cases; (cases cited omitted), and the court will endeavor to give the statute a practical application and to construe it in such a way as to oppose prejudice to public interest. (Cases cited omitted). These considerations are to enable us to determine the legislative intent. Once having determined such intent, however, the ambiguity disappears, and we are no more at liberty to adopt a construction that will not give effect to such intent than we would be had there been no ambiguity in the first instance. This, notwithstanding that we may not approve its purpose or that we perceive undesirable side effects apparently not envisioned at the time of passage.'

See also, Woods v. State (1957), 236 Ind. 423, 140 N.E.2d 752; Roth v. Local Union No. 1460 of Retail Clerks Union (1939), 216 Ind. 363, 369, 24 N.E.2d 280.

The above section from the subdivision regulations is but a small part of a comprehensive platting and zoning plan. It is also, as Glick suggests, an apparent departure from the common law principles regarding watercourses. Because of the nature of this particular regulation or requirement, we must reconcile it both with established case law and the subdivision regulations as a whole.

The case law of this state sets out well-defined principles which govern the options and obligations of adjacent landowners with regard to the drainage of surface waters. In Smith et ux. v. Atkinson (1962), 133 Ind.App. 430, 180 N.E.2d 542, the court adopted the following language from 29 I.L.E. Waters § 53:

'While the...