Trowbridge v. Torabi

• Decision Date: 09 April 1998
• Docket Number: No. 64A03-9706-CV-221,64A03-9706-CV-221
• Citation: 693 N.E.2d 622
• Parties: Donald & Shirley TROWBRIDGE, and Larry & Beverly Hamilton, Appellants-Plaintiffs, v. Tom & Sara TORABI, Appellees-Defendants.
• Court: Indiana Appellate Court

Page 622

693 N.E.2d 622

Donald & Shirley TROWBRIDGE, and Larry & Beverly HamiltonAppellants-Plaintiffs, v.Tom & Sara TORABI, Appellees-Defendants.

No. 64A03-9706-CV-221.

Court of Appeals of Indiana.

April 9, 1998.

Rehearing Denied May 21, 1998.

Michael A. Langer, Langer & Langer, Valparaiso, for Appellants-Plaintiffs.

Gordon A. Etzler, Tina M. Bengs, Hoeppner Wagner & Evans, Valparaiso, for Appellees-Defendants.

OPINION

FRIEDLANDER, Judge.

In this interlocutory appeal, Donald and Shirley Trowbridge and Larry and Beverly Hamilton appeal from an order granting partial summary judgment in favor of Tom and Sara Torabi.The following restated issue is presented in this appeal:

Did the trial court err in granting partial summary judgment in favor of the Torabis and in determining that the laws pertaining to property and water rights are applicable and those pertaining to nuisance are inapplicable?

We reverse and remand.

The Torabis own land adjacent to and immediately east of lots 16 and 17 of the Tanner Trace subdivision in Valparaiso, Indiana.The Trowbridges own lot 16 and the Hamiltons own lot 17.A single pond ¹ is located on all three properties, but it is principally located on the Torabis' property.In order to gain access to a landlocked part of their property, the Torabis constructed, in 1995, a stone driveway across the pond.The driveway, with a twelve-inch culvert at the bottom was located entirely within the boundaries of the Torabis' property.

The Trowbridges thereafter filed a complaint for damages against the Torabis, alleging nuisance per accidens and trespass.They alleged that the driveway construction caused them annoyance and discomfort and also caused destruction of an oak tree on their property.They also alleged that stones from the driveway sporadically entered their property.The Trowbridges also alleged that the twelve-inch culvert constructed beneath the driveway was of insufficient size and seriously restricted the flow of water to that portion of the pond lying on their property, causing stagnation of the pond.They further alleged that the fair market value of their property decreased as a result of the driveway construction.

The Trowbridges sought abatement of the nuisance at the Torabis' expense, the removal of all stones on their property as a result of the construction and existence of the Torabis' driveway, and the removal of the matter they alleged had accumulated on the surface of the pond because of the restriction in the flow of water from the Torabis' portion of the pond due to the improperly sized culvert.

The Trowbridges also sought injunctive relief in the event the Torabis did not abate the nuisance.They requested an order compelling the Torabis to remove the driveway.

The Trowbridges also sought money damages as compensation for the oak tree that was destroyed, the decrease in the fair market value of their property, the interference with the use of their property, the replacement or repair of their septic system, the removal of the driveway, the installation of a culvert sufficient to allow the free flow of water from the Torabis' portion of the pond to their portion of the pond, and for annoyance, discomfort, and inconvenience.They also sought an award of reasonable attorney fees.

The Torabis filed a counterclaim against the Trowbridges and a cross-claim against the Hamiltons.The Torabis also filed a motion for partial summary judgment, alleging that there was no genuine issue of material fact and that they were entitled to judgment as a matter of law.

One of the materials designated to the trial court in support of the motion for summary judgment was a deposition of George Tanner, a developer of the Tanner Trace subdivision and the predecessor in interest of the land owned by the Trowbridges and Hamiltons.In 1948, Tanner and his brother inherited from their parents eighty-seven acres of land upon which the Tanner Trace subdivision was ultimately developed.Tanner had lived on the property his entire life and had farmed a portion of the land.

According to Tanner, in the 1940's, Ed Anderson built a dam and a spillway on his property, which is the property now owned by the Torabis, in order to form a pond.The pond was fed by rain water, springs, and drainage from field tile.Anderson used the water in the pond for crop irrigation.

The spillway from the pond on Anderson's property afforded a fairly adequate flow of water onto Tanner's property in the fall and on an on-and-off basis during the winter and spring.The flow of water would sometimes dry up in the summertime.Tanner described the area of his property onto which the water would flow as "a low, swampy area that was created by the water seeping from and flowing over from the dam that Ed had."Supplemental Recordat 179.According to Tanner, that area of his property did not contain water of a significant depth.Rather, it was merely wet ground that, at times, dried up.

When Tanner was first platting the Tanner Trace subdivision, which was probably sometime in 1975, the land east of Tanner's property, which is now owned by the Torabis, was owned by Wallace Hanrahan.Sometime during the planning stages of the Tanner Trace subdivision, Hanrahan sold the property to Jim and Shirley Kissinger.According to Tanner, water drained downstream from the Kissingers' property in a northwesterly direction across his property.Tanner later testified that there was also drainage into the pond from the southeast quadrant of the Kissingers' property and, to a lesser extent, from the south, southwest, and northwest corners of his property.

When the initial subdivision plans for the Tanner Trace subdivision were being made, Tanner met with the Kissingers and discussed with them his tentative plan to pay for a dam and standpipe to be built on his property in order to expand the pond.Tanner allowed the Kissingers to decide the depth of the pond, which was to be about four-feet deep.Tanner and the Kissingers orally agreed to the construction project, but apparently there was a misunderstanding about who was to pay to remove the dam built by Anderson.In any event, the dam built by Anderson was removed in 1975, pursuant to Jim Kissinger's instructions, when a contractor hired by Tanner constructed the dam and standpipe on Tanner's property.While there is no question that the dam and standpipe constructed in 1975 resulted in an increase in the overall depth of the pond and an enlargement of the west side of the pond, there is a dispute between the parties with regard to whether, before the 1975 dam was built, the pond was located on the land eventually owned by the Trowbridges and Hamiltons.

Tanner subsequently sold the subdivided lots 16 and 17 to the Trowbridges and Hamiltons.The Trowbridges purchased their property from Tanner in June 1976.

It appears from the record that the Kissingers sold their property to the Torabis sometime in 1994.After the Torabis constructed their driveway over the pond in 1995, the Trowbridges initiated this suit, alleging that, as a result of the driveway construction, the portion of the pond located on their property became stagnated and they were no longer able to enjoy its use.

The trial court granted the Torabis's motion for partial summary judgment, ordering:

1.That the laws of property rights and water rights apply and not the law of nuisance.

2.That the Defendants' roadway across the pond was properly constructed on Defendants' property and excepting for liability for the tree damage and the roadway materials that sloughed off onto Plaintiffs' property, Defendants are not liable to Plaintiffs for roadway construction.

Recordat 98.

The standard used to review whether summary judgment was properly granted is well settled:

Summary judgment is proper only where the pleadings, depositions, answers to interrogatories, admissions, matters of judicial notice, and other matters presented for consideration on the motion reveal that no genuine issue of material fact exists and the moving party is entitled to judgment as a matter of law.SeeInd.Trial Rule 56(C).Once the moving party establishes that no genuine issue of fact exists, the non-moving party must set forth specific facts indicating that there is a genuine issue in dispute.If the non-moving party fails to meet this burden, summary judgment in favor of the moving party is appropriate.

The party moving for summary judgment must designate to the court all matters in the record on which it relies for the motion.The non-moving party must also designate to the court"each material issue of fact which that party asserts precludes entry of summary judgment and the evidence relevant thereto."Ind.Trial Rule 56(C).All properly asserted facts and reasonable inferences must be construed in favor of the non-moving party, and any doubt as to the existence of a factual issue must be resolved against the moving party.

McIntyre v. Baker, 660 N.E.2d 348, 349(Ind.Ct.App.1996)(citations omitted).In addition, all facts properly designated by the party opposing the motion must be accepted as true.Shackelford v. Rice, 659 N.E.2d 1142(Ind.Ct.App.1996), trans. denied.

Using the above standard, we conclude that the trial court erred in granting summary judgment in favor of the Torabis because genuine issues of material fact exist.Because such issues of fact exist, we cannot properly review on the record before us whether the trial court erred in determining that the laws pertaining to property and water rights are applicable and that the law pertaining to nuisance is not.

The Torabis support their argument before this court, just as they did before the trial court, with case law pertaining to various types of water, including surface water, ponds, and natural watercourses.Different "water rights" attach depending on whether water is classified as a private pond, a common private pond, a natural watercourse, or mere...