Mid-America Marketing, Inc. v. Falender Development Corp., MID-AMERICA

Citation406 N.E.2d 372
Decision Date03 July 1980
Docket NumberMID-AMERICA,No. 1-280A50,1-280A50
PartiesMARKETING, INC., Plaintiff-Appellant, v. FALENDER DEVELOPMENT CORP., Defendant-Appellee.
CourtCourt of Appeals of Indiana

Stephen W. Terry, Jr., Lewis D. Beckwith, Ralph F. Hall, Baker & Daniels, Indianapolis, John W. Donaldson, Donaldson & Andreoli, Lebanon, for plaintiff-appellant.

Kent M. Frandsen, Parr, Richey, Obremskey & Morton, Lebanon, Stephen E. Plopper, Klineman, Rose & Wolf, Indianapolis, for defendant-appellee.

RATLIFF, Judge.

STATEMENT OF THE CASE

The Boone Circuit Court refused to issue a preliminary injunction enjoining defendant-appellee Falender Development Corp.

(Falender) from coming upon, interfering with, or trespassing upon property of plaintiff-appellant Mid-America Marketing, Inc. (Mid-America).

FACTS

Mid-America and Falender own adjacent tracts of real estate in Boone County, Indiana. Mid-America's 3.16 acres lie east of Ford Road, and Falender's 105 acres border on the west side of Ford Road. Falender's tract is within the corporate limits of the Town of Zionsville, but Mid-America's property is not within Zionsville.

Falender is developing its property into a subdivision to be known as VillageWalk. At the time of the hearing, Falender had cleared land for approximately seventy-four of the planned two hundred lots. Mid-America has tentative plans for the construction of multi-family residences on its property, but Mid-America has not gained approval from Boone County authorities for its plans.

Before Falender started its work, a nineteen-inch ribbed concrete drainpipe, buried four to five feet beneath the ground, passed through Falender's property from west to east. The drain, which passed under Ford Road and through Mid-America's property, emptied into a ditch located near a railroad track east of Mid-America's property.

In developing its real estate, Falender removed this drain (Saylor drain) from its tract. Falender incorporated into its storm sewer system the water which Saylor drain previously transported through Falender's property. The storm sewers empty into a 1.89 acre pond which is approximately twenty feet deep. This pond is located at the east side of Falender's property, beside Ford Road, near Mid-America's tract.

If the water exceeds pool level of the pond, water will leave the pond through a forty-two inch outlet pipe which empties into one hundred square yards of hand-laid stones (riprap). A thirty-foot-wide ramp will also carry water from the pond to the riprap if a severe storm should cause the level of the pond to rise more than five feet above pool stage. The water will leave Falender's property by way of a culvert which will pass under Ford Road. The culvert, which is 83/4 feet wide and 31/2 feet high, had not yet been installed at the time of the hearing, but the pond was nearly completed. 1

Falender's plans call for Falender to do certain drainage work on Mid-America's land. Even before Falender commenced development of its real estate, surface water occasionally crossed Ford Road and proceeded across Mid-America's property. Falender's plans provide for the removal of a sufficient amount of soil, ranging from approximately one foot to two and one half feet in depth, to provide a channel approximately eighteen feet in width extending eastward from the culvert for one hundred sixty feet. In this way the water passing through the culvert would be channeled in a direction so that it would meet the existing path of surface water over Mid-America's land.

The Saylor drain, which is located approximately fifty feet north of the proposed location for the culvert, will continue to drain water from Mid-America's property. The channel which Falender seeks would be located within seventy-five feet of the Saylor drain.

The Boone County Drainage Board transferred jurisdiction of the entire Saylor drain to the Town of Zionsville, and Zionsville accepted jurisdiction of the entire drain. The Town of Zionsville approved Falender's plans for VillageWalk and notified Mid-America that Falender, as an agent of the town, would be entering Mid-America's property for the purpose of digging the channel. Mid-America sought an injunction to prevent Falender's interference

with Mid-America's land. After conducting a hearing, the Boone Circuit Court denied the request for a preliminary injunction.

ISSUES

1. Does the Boone County Drainage Board have authority to surrender to the Town of Zionsville jurisdiction of that portion of Saylor drain which is not within the Town of Zionsville?

2. Can Falender perform the proposed work on Mid-America's property without following statutory procedures for reconstructing a drain so long as the work is done within the area over which a right of entry exists?

3. Did the trial court abuse its discretion in refusing to issue a preliminary injunction?

DECISION
Issue One

By terms of the Indiana Drainage Code, the Boone County Drainage Board has jurisdiction of the Saylor drain. IC 1971, 19-4-1-3 (Burns Code Ed.) and IC 1971, 19-4-5-1 (Burns Code Ed.). 2

IC 1971, 19-4-1-3.5 (Burns Code Ed.) provides:

"County drainage boards may, by resolution, relinquish their jurisdiction over ditches and drains located within a city, town, or sanitary district, if said jurisdiction is accepted by the city, town, or sanitary district."

The Boone County Drainage Board relinquished, and the Town of Zionsville accepted, jurisdiction of not only that portion of Saylor drain which is located within the Town of Zionsville but also that portion of Saylor drain which is outside of Zionsville.

When the words are given their plain and common meanings, IC 19-4-1-3.5 cannot serve as authority for such a transfer of jurisdiction. Saylor drain is not within the Town of Zionsville when it passes through Mid-America's property. IC 19-4-1-3.5 does not authorize the transfer to a town of jurisdiction of drains located outside of the town. Falender's reliance upon IC 19-4-1-3.5 is misplaced.

Falender emphasizes the advantages of vesting in one particular board authority to control the entire drain. We appreciate that fact, but IC 19-4-1-3.5 is not broad enough to accomplish what was attempted in the present situation. If jurisdiction of the Saylor drain is to be possessed by a single board, that board will have to be the Boone County Drainage Board.

We hold that IC 19-4-1-3.5 applies only to the factual situation of a ditch or drain which is located within the town, city, or sanitary district. The trial court erred in concluding that the attempted transfer of jurisdiction was valid as it related to that portion of Saylor drain which is located outside of Zionsville.

Issue Two

Falender insists that Mid-America cannot rightfully oppose the digging of the proposed channel because the channel will be within the area over which a right of entry is established by IC 1971, 19-4-6-1 (Burns Code Ed.). 3

IC 1971, 19-4-1-10 (Burns Code Ed.) lists the various classifications for legal drains: (1) drains in need of reconstruction, (2) drains in need of periodic maintenance, and (3) drains which should be vacated. IC 19-4-1-10(b) reads as follows:

"(b) A legal drain is in need of reconstruction when it will not perform the function for which it was designed and constructed, or when topographical or other changes have rendered the drain inadequate to properly drain the lands affected, without extensive repairs or changes being made thereto. * * * "

IC 19-4-1-10(c) provides:

"(c) A legal drain is in need of periodic maintenance when, by periodically cleaning out, spraying, removing obstructions, and making minor repairs, the drain will perform the function for which it was designed and constructed and will be adequate to properly drain all lands affected thereby under existing conditions."

The plans of Falender leave the Saylor drain completely undisturbed on Mid-America's property. The Saylor drain will continue to receive water from Mid-America's land and transport that water to the ditch located east of Mid-America's property. The proposed channel would carry all of the water which would be fed onto Mid-America's land through the culvert to be placed under Ford Road. Falender's plans appear to call for the reconstruction of the Saylor drain.

IC 1971, 19-4-3 (Burns Code Ed.) sets forth the procedure for reconstruction of a drain. That statutory scheme includes notice to the land owners who will be affected by the proposed improvements, an opportunity to file objections, a hearing before the drainage board, and a definite determination of the damages which will be caused by the improvements and the assessments which will be imposed for the improvements.

The fact that the reconstruction will be accomplished within the area over which the drainage board has a right of entry does not eliminate the need to follow prescribed statutory procedures. Although Falender plans to pay for the cost of reconstruction, Mid-America has been denied opportunity to file objections, to participate in a hearing, and to receive a determination by the drainage board concerning the utility of the reconstruction and the damages which will be caused Mid-America. If Mid-America's objections were heard by the drainage board, there is a possibility that the channel would not be dug; or if the channel were dug, damages could be finally determined without resort to a proceeding other than the proceeding prescribed by the Indiana Drainage Code.

Falender has cited no authority for its proposition that the statutory procedure may be disregarded so long as the proposed work is accomplished within the area over which the drainage board retains a right of entry. Whether Falender's proposal is for reconstruction, 4 maintenance, 5 or construction of a new drain, 6 a specific procedure set forth in the Indiana Drainage Code must be followed.

Issue Three

Mid-America contends...

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