Mattingly v. Warrick County Drainage Bd.

• Citation: 743 N.E.2d 1245
• Decision Date: 13 March 2001
• Docket Number: No. 82A01-9912-CV-414.,82A01-9912-CV-414.
• Parties: John T. MATTINGLY, Appellant-Plaintiff, v. WARRICK COUNTY DRAINAGE BOARD, Appellee-Defendant.
• Court: Court of Appeals of Indiana

743 N.E.2d 1245

John T. MATTINGLY, Appellant-Plaintiff, v. WARRICK COUNTY DRAINAGE BOARD, Appellee-Defendant.

No. 82A01-9912-CV-414.

Court of Appeals of Indiana.

March 13, 2001.

Leslie C. Shively, Evansville, IN, Attorney for Appellant.

David Sauvey, John B. Drummy, Eric D. Johnson, Evansville, IN, Attorneys for Appellee.

OPINION

HOFFMAN, Senior Judge.

Plaintiff-Appellant John T. Mattingly appeals the grant of summary judgment in favor of Defendant-Appellee, the Warrick County Drainage Board, and the denial of his motion for partial summary judgment. Mattingly raises four issues, which we reorder and restate as:

1. Whether the trial court properly considered affidavits submitted by the Drainage Board in support of its motion for summary judgment.

2. Whether Ind.Code § 36-9-27-33 creates a seventy-five foot right-of-way over Mattingly's property.

3. Whether Mattingly purchased the relevant property subject to the right-of way.

4. Whether the Drainage Board's denial of Mattingly's request to build a permanent structure on the right-of-way qualifies as an unconstitutional taking of property without compensation.

We affirm.

On August 9, 1995, Mattingly purchased approximately 3.10 acres of land in Warrick County on which he planned to construct eight buildings containing 457 mini-storage units.¹ To that end, Mattingly had the property rezoned, and he secured conditional use and commercial driveway permits. When Mattingly hired an engineering firm to complete the building permit process, he learned that a "regulated drain"² abuts the western border of his property and that his construction project encroached upon the right-of-way associated with the drain. Mattingly asked the Drainage Board to reduce the right-of-way to twenty-five feet, but the Board would only decrease the encumbrance to fifty feet. Complying with that decision, Mattingly could build only 318 units.

On March 18, 1998, Mattingly filed a four-count complaint against the Drainage Board alleging, inter alia, an unconstitutional taking. The Drainage Board moved for summary judgment on all issues, and Mattingly moved for partial summary judgment on the taking issue. Mattingly also moved to strike portions from the affidavits of County Surveyor Michael Irvin, submitted by the Drainage Board in support of its motion. The trial court denied the motions to strike, granted the Drainage Board's motion for summary judgment, and denied Mattingly's motion for partial summary judgment. This appeal followed.

In this case, the trial court entered specific findings of fact and conclusions thereon, which are neither required nor prohibited in the summary judgment context. City of Gary v. Indiana Bell Tel. Co., 732 N.E.2d 149, 153 (Ind.2000). Although specific findings facilitate our review of summary judgment rulings, we are not limited to reviewing the trial court's reasons for granting or denying summary judgment. I/N Tek v. Hitachi, Ltd., 734 N.E.2d 584, 587 (Ind.Ct.App.2000), trans. denied. Rather, when we review the grant or denial of a summary judgment motion, this court stands in the shoes of the trial court. Long v. Dilling Mechanical Contractors, Inc., 705 N.E.2d 1022, 1024 (Ind. Ct.App.1999), trans. denied. We liberally construe all designated evidentiary material in the light most favorable to the nonmoving party and determine whether there is a genuine issue of material fact for trial. I/N Tek, 734 N.E.2d at 587. The party that lost in the trial court has the burden to persuade the appellate court that the trial court erred. Id.

Here, Mattingly argues that the trial court erred when it denied his motions to strike portions of two affidavits submitted by the Drainage Board in support of its motion for summary judgment. In the first, County Surveyor Michael Irvin verified: "The regulated drain at issue in this case was designated as such prior to September 1, 1984." (R. 112). Mattingly claims that Irvin has no personal knowledge that the drain in question was a regulated drain. Mattingly also objects to Irvin's second affidavit, which reads:

1. I am the duly elected Surveyor of Warrick County, Indiana, and have personal knowledge of the facts set forth in this affidavit.

2. Attached to this Affidavit is Exhibit A as a true and exact copy of the records of the Warrick Circuit Court dated September 10, 1887, relating to the petition by owners of certain property for the establishment by Warrick County of a legal or regulated drain along the western edge of Warrick County. These documents also show that the petition was granted and the drain constructed by the County. The originals of Exhibit A are in my possession.

3. The regulated drain that was established in 1887 is the same ditch that forms the western boundary of the property owned by John Mattingly Homes, Inc.

4. All of the drains and ditches in the southwest part of the County, including the one at issue here, are collectively referred to as the "Weinsheimer Water Shed."

5. Prior to 1970, drainage matters in Warrick County were handled by a drainage court presided over by a judge. Beginning in 1970, Warrick County instituted the current form of the Drainage Board. In one of its first meetings on April 10, 1970, the Board discussed appropriating money for the repair and maintenance of the "Weinsheimer Water Shed," which would include the drain at issue in this case. A copy of the minutes of this meeting [is] attached as Exhibit B to this affidavit.

6. On August 14, 1970, the drainage board approved the realignment, repair and maintenance of the ditches and drains in the "Weinsheimer Water Shed." A copy of these minutes [is] attached hereto as Exhibit C.

7. To my knowledge, the County has exercised control over the drain in this case ever since it was constructed by the County in 1887. This control, and the drain's status as a regulated drain, was reaffirmed in 1970.

(R. 305-06). Mattingly challenges Paragraphs 2 and 3, asserting that Irvin was neither qualified to authenticate the 1887 court document under Ind. Trial Rule 44(A) nor to conclude that the drain established in 1887 is the same drain that abuts his property.

Mattingly does not object to Paragraph 7, in which Irvin also verified the drain's status as a regulated drain since 1887. Mattingly cannot predicate error on cumulative evidence. See Campbell v. Shelton, 727 N.E.2d 495, 502 (Ind.Ct. App.2000)

. In any event, Ind.Code § 36-9-27-29 denominates Irvin "the technical authority" regarding regulated drains. See infra. As such, he has personal knowledge regarding the nature and history of the regulated drain. With respect to the 1887 order itself, authentication under T.R. 44(A) generally requires that an officer having custody of the record to attest, by testimony or by certification, that the offered document is the official original or a true and accurate copy thereof. Lucre Corp. v. County of Gibson, 657 N.E.2d 150, 155 (Ind.Ct.App.1995),

trans. denied, cert. denied, 519 U.S. 950, 117 S.Ct. 362, 136 L.Ed.2d 253 (1996). Irvin attested that the document is a true and accurate copy of the original order in his possession. There is no reversible error.

Mattingly also contends that the Drainage Board has, at best, a right-of-entry over a seventy-five feet area, "nothing more than a license," and a separate right-of-way, or easement, limited to the actual dimensions of the drainage ditch itself.³ Thus, Mattingly asserts that the Drainage Board could prevent the construction of permanent structures only "from the top of one bank [of the ditch] to the top of the other bank."

The relevant statute provides in part:

(a) The county surveyor, the board, or an authorized representative of the surveyor or the board acting under this chapter has the right of entry over and upon land lying within seventy-five (75) feet of any regulated drain. The seventy-five (75) foot limit shall be measured at right angles to:

(1) the center line of any tiled drain; and

(2) the top edge of each bank of an open drain; as determined by the surveyor.

(b) Spoil bank spreading resulting from the construction, reconstruction, or maintenance of an open drain may extend beyond the seventy-five (75) foot right of way if:

(1) the county surveyor finds that the extension is necessary; and

(2) the extension has been provided for in the engineer's report on the construction, reconstruction, or maintenance.

(c) All persons exercising the right given by this section shall, to the extent possible, use due care to avoid damage to crops, fences, buildings, and other structures outside of the right-of-way, and to crops and approved structures inside the right-of-way....

(d) The owners of land over which the right-of-way runs may use the land in any manner consistent with this chapter and the proper operation of the drain. Permanent structures may not be placed on any right-of-way without the written consent of the board. Temporary structures may be placed upon or over the right-of-way without the written consent of the board, but shall be removed immediately by the owner when so ordered by the board or by the county surveyor. Crops grown on a right-of-way are at the risk of the owner, and, if necessary in the reconstruction or maintenance of the drain, may be damaged without liability on the part of the surveyor, the board, or their representatives. Trees, shrubs, and woody vegetation may not be planted in the right-of-way without the written consent of the board, and trees and shrubs may be removed by the surveyor if necessary to the proper operation or maintenance of the drain.

Ind.Code § 36-9-27-33 (emphases added).

It is true, as Mattingly points out, that subsection (a) describes a seventy-five foot "right-of-entry." Nevertheless, subsection (b) expressly refers to a "seventy-five (75) foot right-of-way." A plain reading of the statute shows that the legislature intended to create both a seventy-five foot right-of-entry and a seventy-five foot right-of-way,...