Gilmer , Gilmer v. Board of Commissioners of Marshall County
| Decision Date | 04 October 1982 |
| Docket Number | No. 3-1280A397,3-1280A397 |
| Citation | 439 N.E.2d 1355 |
| Parties | Walter H. GILMER and Helen Gilmer, Appellants (Defendants below) v. BOARD OF COMMISSIONERS OF MARSHALL COUNTY, Indiana, Appellee (Plaintiff below). |
| Court | Indiana Supreme Court |
Appeal from Marshall Superior Court, Marshall County; R. Alexis Clarke, Judge.
Marshall F. Kizer, Kizer, Neu, Joyce, Hite, Wyland, Wagner & Gifford, Plymouth, for appellants.
Eugene N. Chipman, Chipman, Humphrey & Chipman, Kenneth M. McDermott, McDermott Law Office, Plymouth, for appellee.
Petition for transfer denied.
I must respectfully dissent to this Court's refusal to grant the petitions to transfer filed in the above-entitled cause. Therein, both the defendants, Walter and Helen Gilmer, and the plaintiff, the Board of Commissioners of Marshall County, seek review of the Court of Appeals' opinion found at Gilmer v. Board of Commissioners of Marshall County, (1981) Ind.App., 428 N.E.2d 1318 (Hoffman, P. J., concurring in result).
The dispute between the Gilmers and the Marshall County Board of Commissioners involves the matter of adjacent landowners' responsibilities vis-a-vis each other's property with respect to surface water, an issue recently discussed by this Court in Argyelan v. Haviland, (1982) Ind., 435 N.E.2d 973 (Hunter, J., dissenting with opinion in which Givan, C. J., concurred). There, the majority of this Court adopted the "common enemy" doctrine as enunciated in an 1878 decision of this Court, Taylor, Administrator v. Fickas, (1878) 64 Ind. 167.
Prior to this Court's decision in Argyelan v. Haviland, however, the Third District Court of Appeals had handed down its decision in the instant case. See Gilmer v. Board of Commissioners of Marshall County, supra. The opinion was rendered as a companion decision to Rounds v. Hoelscher, (1981) Ind.App., 428 N.E.2d 1308 (Hoffman, P. J., concurring in result), where the Court of Appeals resolved that this jurisdiction should abandon the "antiquated" common enemy doctrine in favor of the rule of reasonable use. In deciding the instant case that same day, the Court of Appeals directed the trial court to conduct further proceedings consistent with the rule of reasonable use enunciated in Rounds v. Hoelscher, supra.
Both the Gilmers and the Marshall County Board of Commissioners now petition this Court to grant transfer and review the Court of Appeals' decision. Consistency in our case precedent and the application of our laws deem that the Gilmers' petition to transfer should be granted. A larger issue looms within the petition to transfer of the Marshall County Commissioners, however; the elementary and fundamental principle of due process, as well as Ind.R.Ap.P. 11(B)(2)(e) and well-settled case precedent, demand the Commissioners' petition be granted.
That is so because the Commissioners obtained injunctive relief at the trial court level on the basis that surface water repelled from Gilmers' land onto a county roadway constituted a "nuisance," as that cause of action is defined in Ind.Code Sec. 34-1-52-1 (Burns 1973). Due to the Court of Appeals' disposition of the Gilmers' appeal and this Court's refusal today to review this cause, the Marshall County Board of Commissioners has been denied appellate review of the theory of law upon which it gained its trial court judgment.
That result is indeed unusual. Certainly it is anathema to the right to appeal granted our citizens, as well as to the notion of due course of law guaranteed by our Indiana Constitution. See Indianapolis Life Ins. Co. v. Lundquist, (1944) 222 Ind. 359, 53 N.E.2d 338; Ind.Const. art. 1, Sec. 12. That a judgment entered at the trial court may be vacated without appellate review of the merits upon which it was granted is unacceptable, for there is no more important judicial function in this state than the duty of affording our citizens their day in court and their right to appellate review. That is the bedrock principle of our judicial system.
The inability of the Marshall County Commissioners to gain appellate review is particularly paradoxical in light of a well-settled and routinely-invoked rule of appellate review. Chief Justice Arterburn succinctly stated the rule in Cain v. State, (1973) 261 Ind. 41, 45-6, 300 N.E.2d 89, 92:
The rule that our appellate tribunals must affirm the judgment or ruling of the trial court if sustainable on any theory has been repeatedly invoked in this jurisdiction, in civil as well as in criminal appeals. See, e.g., Elmore v. City of Sullivan, (1978) Ind.App., 380 N.E.2d 108; In re Estate of Fanning, (1975) 263 Ind. 414, 333 N.E.2d 80; Duemling v. Fort Wayne Community Concerts, Inc., (1963) 243 Ind. 521, 188 N.E.2d 274; Kranda v. Houser-Norborg Medical Corp., (1981) Ind.App., 419 N.E.2d 1024; Indiana Broadcasting Corp. v. Star Stations of Indiana, (1979) Ind.App., 388 N.E.2d 568; Theye v. Bates, (1975) 166 Ind.App. 652, 337 N.E.2d 837; Wilhoite v. Beck, (1967) 141 Ind.App. 543, 230 N.E.2d 616; Rosenberg v. Rosenberg, (1961) 131 Ind.App. 437, 171 N.E.2d 829.
Wholly at odds with these precedents is the fate which befalls the Commissioners here. Their petition to transfer is expressly predicated on Ind.R.Ap.P. 11(B)(2)(e), which provides that one basis for seeking transfer is the failure of the Court of Appeals "to give a statement in writing of each substantial question arising on the record and argued by the parties." In their petition, the Commissioners have explained that they obtained their judgment on a nuisance theory; they have referred us to their brief filed with the Court of Appeals and established that the nuisance theory was argued by the parties. The Commissioners have complied with our appellate rules.
The rules and standards of appellate review do not lend themselves to ad hoc application. This Court errs today by virtue of the majority's refusal to grant the Marshall County Board of Commissioners' petition to transfer.
Granting transfer would have served another purpose. Review of the trial court's judgment would have provided this Court with the opportunity to reexamine our holding in Argyelan v. Haviland, supra. Against the facts of the present dispute and the letter and spirit of the nuisance statute, this Court could have assessed the merits of the 104 year old rule invoked in Argyelan. That assessment would be particularly appropriate since the majority of this Court in Argyelan refused to address the potential applicability of the nuisance statute, even though that theory ostensibly provided a basis for affirming the trial court and was consequently appropriate for consideration. Cain v. State, supra.
The nuisance statute is unambiguous:
"Whatever is injurious to health, or indecent, or offensive to the senses, or an obstruction to the free use of property, so as essentially to interfere with the comfortable enjoyment of life or property, is a nuisance, and the subject of an action." Ind.Code Sec. 34-1-52-1, supra (emphasis added).
The legislature stated that "whatever" constituted an "obstruction" to the "free use of property" and its "comfortable enjoyment" was actionable. It did not say "whatever, excepting surface water."
This jurisdiction has recognized that injury to the health or senses is not the sole gravamen of the statute. Yeager & Sullivan, Inc. v. O'Neill, (1975) 163 Ind.App. 466, 324 N.E.2d 846. In terms of fundamental principles of liability, there appears no rational distinction between interferences with the use of property occasioned by surface water, as opposed to other mediums such as pollution, sound, or vibration. See, e.g., Muehlman v. Keilman, (1971) 257 Ind. 100, 272 N.E.2d 591; Friendship Farm Camps, Inc. v. Parson, (1977) 172 Ind.App. 73, 359 N.E.2d 280. If property is rendered unusable or can no longer be comfortably enjoyed, that is a nuisance. Our legislature stated it that way. Other jurisdictions have recognized there is no rational basis by which to exclude surface water from the realm of nuisance law and principles. See, e.g., Butler v. Bruno, (1975) 115 R.I. 264, 273, 341 A.2d 735, 740, 93 A.L.R.3d 1183, 1190, n. 6 (); Deason v. Southern R. Co., (1927) 142 S.C. 328, 140 S.E. 575 (). Indeed, this Court has recognized that the obstruction of a roadway, either by flooding or by a physical structure, constitutes a nuisance. See Langsdale v. Bonton, (1859) 12 Ind. 467; State v. Phipps, (1853) 4 Ind. 515.
The facts of this case reveal the Board of Commissioners of Marshall County is eyeball-to-eyeball with a "nuisance," both in its legal and lay sense. It is the Commissioners' legal duty as public officials, of course, to maintain Marshall County roadways in a safe and usable condition; any liability for the failure of the Commissioners to fulfill their public duty rests with Marshall County....
To continue reading
Request your trial