Argyelan v. Haviland

In view of Court. the direct evidence Miller, however, say

witness I would not it was error meriting reversal of the Again, strong,

conviction. in view of the eyewitness testimony

direct of witness Mil-

ler, surely it can said that this jury be

would have convicted the defendant even potentially prejudicial

without the knowl-

edge prior of a arrest and the composite

drawing given police while under

hypnosis.

I agree that in both instances evi- rejected

dence should have been in the form

in which it was offered but in view of all case,

the evidence in the I would find that

any error committed in their admission was

harmless error. I judg- would affirm the

ment of the trial court. Argyelan,

Steve ARGYELAN and Anna

Appellants (Defendants Below),

Harold HAVILAND and Maxine Havi

land, (Plaintiffs Appellees Below).

No. 682S208.

Supreme Court of Indiana.

June

Auburn Street and faces west. The de- fendants own a commercial lot which is “L” shaped. top The “L” abuts Wash- ington Street, an thoroughfare; East-West Associates, R. Victor Indianapo- Stivers & leg Street, abuts Auburn a North-South lis, for appellants. Street, to, and the adjacent foot is north of Burton, Jensen, Lamey & Indianapolis, depth and extends the full of Plaintiffs’ lot. for appellees. The elevation of Washington Street higher than the land of Plaintiffs and De- PRENTICE, Justice. fendants. Surface water drains This'cause is upon petition before us Washington Street into Auburn Street and of the plaintiffs (appellees) to transfer the flows southwardly approximately cause from the Court of Appeals, Second feet to a small creek or public drainage District, which judg- Court reversed the ditch. Auburn Street has no ditches or ment of the Circuit Court of Marion County sewers, storm gentle, fall is and the awarding damages, withholding injunc- but surface water sometimes overflows into the relief, tive against Defendants for unlaw- adjacent yards. fully discharging' surface water run-off The adjacent side of Plaintiffs’ lot upon the land of Plaintiffs. side, Defendants’ lot is its low opinion Appeals, the Court of point lowest (the the lot is at its rear District, Second correctly followed ruling end). easterly It is not clear whether the precedents Court; of this but such ruling natural drainage of Plaintiffs and Defend- precedents appear to be in need of clarifica ants prior lots making Defendants tion, as opinion evidenced mentioned, alterations hereinafter was onto District, Court of Appeals, Third in the Plaintiffs’ lot or onto Defendants’ lot. Rounds, cause Hoelscher, entitled et a l. v. Plaintiff, Haviland, Mrs. prior testified that handed down December 1981and lot, to Defendants improving their she had published at 428 N.E.2d 1308. In the case never seen surface water drain from the bar, at the Court for the Second District Defendants’ lot onto their own and that no correctly recognized applied the “Com consequential had, amount of surface water Rule,” mon Enemy whereas Court for therefore, puddled or accumulated the Third recognize District failed to said their lot. For purposes opinion, of this rule as the established prevailing rule therefore, adopt we the view that Defend- and purported to establish as the law of this if, fact, ants’ lot higher high was no state that which has come to be known in that оf the Plaintiffs. jurisdictions other as the “Rule of Reasona Prior to Defendants’ lot was cover- ble Use.” grass ed with and trees. In Defend- conflict, order to reconcile said we now ants building erected a commercial on that grant petition transfer, and the deci- portion adjacent Washington of their lot sion and opinion of the Appeals, Court of Street; and in they built another com- District, Second appears at 418 building along mercial the foot of the “L” vacated; N.E.2d 569 is hereby although the twenty (20) to and feet north of is, nevertheless, of the trial court plaintiffs’ They paved, north line. also reversed, because presented the evidence for parking, portion of the lot not built insufficient to sustain it. upon, except twenty strip adja- for the foot plaintiffs’ cent to the north line. fill Some

FACTS and, building; was used around the al- The facts of the case are though clear, instant not in is not appears it it that De- dispute. material Plaintiffs are the owners along fendants also used substantial fill of a improved “L”, residential lot with a house foot of the increasing it as extended and two outbuildings. The lot fronts on to the toe. diverting

The roof of the more recently accelerating constructed its flow by any buildings of Defendants’ is drained by means whatever. downspouts means of three on the south doctrine, The “civil law” on the other

side of building. Two of these hand, proscribes interfering altering with or downspouts empty splash onto blocks at the the flow of surface water. building. corners of the The third one Both doctrines are harsh but have the underground pipe drains into an which car- common virtue of predictability. Under eastwardly ries the water to a point twenty them, landowners know they where stand. feet north of the dividing fifty line and feet They know what they may do and what line, west of Plaintiffs’ east if extended. they may incurring not do without severe Following completion of Defendants’ risks. If at times the doctrines work to improvements, aforementioned Plaintiffs disadvantage, one’s there are other times complained that surface water was draining when he reaps its benefits. from Defendants’ property prop- onto their Because of the harshness of both of these erty, pooling causing there and substantial rules, exceptions various and limitations damage. Defendants then erected a con- engrafted upon juris- have been them in all curbing crete approximately one foot north dictions of the United A States. substan- of extending Plaintiffs’ north line and tial permitted number of states have but proximately six inches above thе finished modifications, minor jurisdic- such grade of Defendants’ lot. On the south tions the generally doctrines are still re- side, i.e., plaintiffs’ side, curbing ferred to as the “common law doctrine” and extends approximately eight inches above doctrine,” the “civil law notwithstanding grade at the west or Auburn Street end and such modifications. approximately two feet grade above at the east end. jurisdictions, Other approximately twenty number, adopted have evolved to or curbing, Erection of if it alleviated express design the aforementioned third the plaintiffs’ problem, did not doctrine now referred to as the “Rule of eliminate it. testimony There was that in a Reasonable Use.” rain, sustained water would accumulate be- hind the curb but eventually flow over it. apparently “The reasonable use rule was adopted Hampshire. Noting first in New Historically, two diametrically opposed the inconvenience which would arise from but clear consistently rules were followed adopting extreme rules that a landowner the various respect states with to surface right drainage has either no or an abso- water, which must be distinguished from right, Salisbury lute the court in Bassett v. flowing, even if not continuously, Mfg. (which Co. 43 N.H. 569 through established and defined channels. apparently primarily рerco- concerned with Through extensive modifications of both lating waters), said that the sole rules, a third doctrine emerged and has qualification right of the landowner’s adopted been in approximately twenty of others, drainage rights was the similar rules, the states. These their development qualification being extent deter- and their application are extensively treat- use, mined under the rule of reasonable ed and annotated at 93 A.L.R.3d 1193 et rights being of each landowner similar seq. enjoyment dependent upon and his the ac- simplistic its most pure form the landowners, tion of the other so that the rule known enemy as the “common doc- rights must be valueless unless exercised trine,” declares that surface water which * * *” with reference to each other. does not flow in defined channels is a com- A.L.R.3d 1193 at 1216. mon enemy and that may each landowner deal with it in such manner civil as best suits his law rules own convenience. dealings grounded upon property concepts. Such sanctioned are real out, include walling walling it it in and re- engrafted upon The modifications them suited the use concepts rains, of tort law moderate to heavy up water built mitigate used to the harsh results of the behind the wall and overflowed it. There law doctrines. Thе doctrine of showing was no whatever that the defend use,” however, goes ants, “reasonable much fur- “by conducted the water new channels ther upon and focuses the results of quantities in unusual particular parts onto consequent action interference with of the lower field” as in Templeton v. Vosh loe, another’s use of his advantage land. Its 72 Ind. 134 or collected the water flexibility. disadvantage, Its obviously it, a volume and City cast as in Davis v. its unpredictability. Crawfordsville, (1888) 119 Ind. 21 N.E. 449 and in Township Patoka et al v. Hop Although doubtlessly Indiana would not kins, ‍​​‌​‌‌‌​‌‌​​​​​‌​‌​​​​‌​​‌​‌‌​​​‌​​​​‌​‌​‌‌‌​‌​‌‍(1891) 131 Ind. 30 N.E. permit a malicious or wanton employment “shed the water building from their so as to drainage rights one’s under the common throw it appellant’s (Em lot.” doctrine, appears phasis added) l, as in Conner v. Woodfill et a rights limitation upon such that we have (1890) 126 Ind. 25 N.E. 876. thus judicially recognized far is that one may not collect or intimate, concentrate We do not as Plaintiffs’ errone- it, water and cast in body, upon neigh his ously did, infer that Appeals Court Farms, bor. Surratt, Cloverleaf Inc. v. that a distinction can be drawn between the (1976) Ind.App. 349 N.E.2d 731 and case before us and the upon Conner case cited, Co., cases there B. Gene Glick Inc. v. basis that Defendants’ downspouts are situ- Corp., Marion Construction twenty 165 Ind. ated feet from the line App. denied, 331 N.E.2d reh. they whereas in Conner eight were but feet Ind.App. 333 N.E.2d 140 and cases there removed. The distinction lies in the charac- cited. ter of the flow as it entered the adjoining property. That water was impounded once acknowledge Plaintiffs the rule in Indi- or channeled can be of no moment if it is ana to be as hereinbefore They stated. general diffused to a flow point at the appear argue, however, by a combi- entering adjoining land. nation of erecting downspouts directed to- wards the property-line, paving a substan- Except by as modified the above portion tial land and erecting their cases holding cited and others may that one aforementioned curb or retaining wall not, by artificial means throw or cast sur along line, the property the defendants face water upon neighbor in unusual somehow exceed the limits per- of what is quantities so amplify as to the force at a missible in fending off the surface water. given point points, or the law of this state It requires reweighing no of the evidence to remains as hereinafter quoted by this Court determine that the evidence does not bear Taylor, Fickas, Administrator v. them out. There is simply no evidence that Ind. at 173. any surface water was ever channeled frоm “ right ‘The of an owner of land to Defendants’ land onto that plaintiffs of the occupy improve it in such manner or cast in a body upon them. purposes fit, and for such may as he see Under the common enemy doc by changing either the surface or the trine, it is not unlawful to accelerate or buildings erection of or other structures increase the flow of surface water by thereon, limit is not restricted or by modified ing or eliminating ground absorption or the fact that his own land is so situated changing grade of the land. These two with reference adjoining to that of owner things, concede, we may by are shown that an alteration in the mode of its evidence to have resulted from Defendants’ improvement occupation or any portion improvements. However, the only evidence water, of it will cause may which accu- that water from the defendants’ premises mulate by thereon rains and snows fall- entered those plaintiffs’ was testimo ing surface, on its or flowing onto it over ny that, on occasions following sustained lots, adjacent surface of either adja- general guidelines by lawyers which the on other quantities stand in unusual lands, may the same and the trial courts of the State make pass or into or over cent upon they determinatiоns can de- quantities or in other di- greater they pend. than were accustomed to This function cannot be fulfilled rections ” summarily abandoning flow.’ with replacing rule and a rule of reasona- “Again, from the same cause: longer lawyers “ bleness. No will be able to or ‘The obstruction of surface water any degree advise their clients with of cer- flow it affords no an alteration tainty. may What be reasonable to one who person cause of action in behalf of a may in the use of his be person may suffer loss or detriment therefrom unreasonable to an landowner. one who inconsistent against does no act opinions may comport Neither of these with the due exercise of dominion over ” judge might what a trial declare is reasona- his own soil.’ nothing majority opinion ble. The does this case was decided the Court Since muddy more than the waters in this area District, Appeals, the Third Dis Second (Emphasis added) the law.” 428 N.E.2d at trict of that Court has handed down Hoelscher, (1981) a decision in Rounds et l v. we add Judge To Hoffman’s comments Ind., failed to 428 N.E.2d 1308. That court although Enemy the Common Doctrine recognize prohibition against channel times, hardships, inflict it is as fair may, at ing neigh surface water one’s lower guiding precept to one as it is to another—a particular point bor at as a limit points Additionally, the law. it has worked rule, ing exception to the common begin- in this from the satisfactorily State clearly recognized by it has been this Court is There has ning, and it well understood. and, instead, century for more than a re change been no in the forces that cause appli ferred to the cases that it as invoked problems water to run down hill since the cations of the civil rule. From this incor thereby caused were first considered and rect it premise, concluded that the civil rule State; resolved in this and there is no basis had applied respect altering been to or in the rules for assuming change that a lands, increasing the flow while upon lower would, over-all, coping problems with such ap doctrine had been any their number or make them reduce plied in cases where lower owners had palatable. more or caused unwanted water to be diverted should not be slow to Although courts impounded upon owners means of upper conditions, in changing changes respond to majority purport dams or levees. The then had, theretofore, not warranted sim- that the established law are ed to settle which should imperfect, it is and we ply been clear. It declared the rule of this because jurisdiction compelled join to be of Reasonable not feel to the ranks the Rule dem- and numbers when it has not been greater Use enumerated seven non-exclusive way. way considerations to be in deter onstrated that their is the better employed mination of what uses are reasonable. advan- recognize We no need to take the somewhere, Hoffman,

Judge tage, repose away must concurring in the result which Rounds, supra, top simply noted that the from the owner at the of the hill correctly case law in the first in give this area was not unsettled and to it to the owner who was land, ignored develop that the had to his or to the stare decisis. the watershed wrote, “I agree,” high places cannot he or can “that this court owner who has friends any respect presume greater sympathy should in to for his engender be ba- public opinion rometer of make plight. disposed or the weather- Neither are we change. already vane of social over- Legisla- drainage It is for the commissions of our These, perceive ture to establish we procedures for such burdened trial courts. change. Ap- The function of the of the latent drawbacks to Court to be some We, peals interpret is to the law and down Rule of Reasonable Use. lay so-called therefore, expressly disapprove belongs the holding person time, who is last in Rounds, supra, to the extent that it pur- elevates land the highest, paves and ports change surface water law of greater portion of his lot surface. It re- this State. quires no resort to hyperbole recognize that the ramifications for the homeowners granted. Transfer The decision of the of this are state unconscionable. For that District, Appeals, Court Second is vacat- reason, majority’s opinion warrants an ed, trial court is exacting scrutiny. reversed. Its analysis of the evidence violates the PIVARNIK, JJ., DeBRULER concur. standard of review incumbent this appellate Court as an ruling tribunal. Its HUNTER, J., with opinion dissents product of law is the of semantics and GIVAN, J., C. concurs. distinctions, meaningless logic. rather than HUNTER, Justice, dissenting. addition, the majority bases its holding respectfully I must dissent from the ma on an incomplete analysis of this and other jority opinion, although I wholeheartedly jurisdictions’ water, law of surface as well agree petition Havilands’ to trans as a analyze failure to the historical devel- fer granted. should be Unlike the majority, opment policy considerations surround- however, petition I would address that on ing the Equally doctrine. merits, reverse and vacate the decision significant, the majority has failed to Appeals Second District Court of consider statutory authority relevant Haviland, Argyelan found at Ind. suggested has that our courts are not open App., (Sullivan, J., N.E.2d dissent for the disputes resolution of of the factual ing), $7,500 and reinstate the judgment and present. nature It is for these all reasons in damages which the court trial awarded that I pervade believe errors the majority the Havilands. opinion. is, jurisdiction As it is today present- To appreciate import understand and ed with a rule of law result so inimical of holding the court’s today, necessary justice, sense of any lay legal, be it begin with an examination all the system jurisprudence. it offends our us concerning dispute evidence before the legal Lest the factual nuances involved Havilands, between plaintiffs, the as in import this cause obscure the of the Argyelans, the In defendants. our re decision, majority’s its ramifications for the judgment view of the awarded the Havi- homeowners of this should recog- state be level, Court, lands at the trial court this nized the outset. In its simplest tribunal, appellate an required is to refrain terms, majority the of this Court has held from the weighing judging evidence the or landowner, seeking that a proper- to use credibility of witnesses. It is our duty to ty for purpose, may a commercial so alter only consider that evidence which favor ground the surface and natural drainage together able to the prevailing party, with pattern adjacent an that landowner’s exist- all reasonable may inferences which be ing of his usage property for residential If, drawn viewpoint, therefrom. from that purposes is rendered impossible by virtue of there probative is evidence of value to sus the resultant accumulation run-off of fact, tain the of the finder the surface water. not conclusion will be disturbed. Meehan v. 157; proposition Meehan, Ind., That is a out of step (1981) with 425 N.E.2d Indi which, time judicial logic, Michigan Company one as the ana & Electric v. majority tacitly concedes, Schnuck, 632, (1973) is not and would Ind. N.E.2d 436; Jackson, not by jurisdiction be followed any Adoption other In re 162; 588, nation. Our law of surface water is Ind. 277 N.E.2d Mutual Benefit Keiser, today reduced to the jungle, rule of the Health Assn. v. & Acc. “might 707; where 472, right” makes Ind. race 14 N.E.2d Oxendine Public Then, 1970, Ind., Inc., (1980) Ind.App., undeveloped two lots to Service Co. 423 N.E.2d 612. purchased of the Havilands were the north efforts, Argyelan. Through Steve his it is recognized

This Court has that adjacent property the lot to the Havilands’ to the abovе standard prerogative apply our basis; acknowledged on an ad hoc we have was rezoned from a residential to a business we even precepts that cannot violate its 186, (Tr. p. 17-21.) 11. By classification. though might we have reached a different 1974, Argyelan large had constructed two conclusion had we been the trier of fact. buildings (Tr. on property. commercial Meehan, supra. Meehan v. 186, 22-26.) p. constructing 11. In majority provided Because the has an in- buildings,- grass he removed all trees and facts, complete view of the relevant and raised the level of his lots two to three summarized; dispute details of the must be (Tr. p. feet with fill dirt and crushed stone. disregarded because the has 27; 21-22; 107, 161, 180, p.Tr. 11. p. 1. Tr. review, standard of citations the tran- to 14-15; 187, 18-24; p. 203, 11. Tr. p. 11. Tr. script of the evidence are also included. 5-10.) Argyelan paved 11. then the vast 1948, In Harold and Maxine Haviland of the portion two-acre surface not purchased a lot and home at 807 South (Tr. occupied by p. the business structures. Indianapolis, Auburn Street in Indiana. At 11-14; 203, 180, p. 14-18.) 11. Tr. 11. time, property their northern line ad- prior Argye- It uncontradicted that joined parcel occupied by large a two-lot property, lan’s alterations of his the Havi- two-story Apparently, house. that house razed; 1970, eventually problem flooding no was tract lands had adjoining the Havilands’ bore (Tr. p. standing property. water on their grass and a stand of trees. The lot immedi- 11-18-20; 180, 14-23.) p.Tr. 11. Both ately to the Havilands’ Argyelan acknowledged the Havilands and usage. remained zoned for residential grass occupied that when and trees lots, second and northernmost of the located parcel, two-acre the tract absorbed the sur- at the intersection of Auburn and South it; face water which fell Streets, West Washington was zoned for agreed Argyelan’s virtually alterations usage. (Tr. 106-8.) commercial pp. parcel eliminated the capacity Meanwhile, passed the Havilands 16-20; (Tr. p. 11. Tr. p. absorb water. years equanimity, relative enjoying the 8-15; 19-20.) p. Tr. 11. not uncommon habits of homeowners. In spring the Havilands be- couple a garage supple- built drainage problems gan experience severe ment utility shed and small frame house basis; 131,1.14.) on property. (Tr. p. regular standing their Max- water became on a business; ine dabbled in the antique event, occurring every after commonplace couple eventually garage devoted their Haviland testi- moderate rainfall. Harold storage personal of items and Maxine’s an- rainfall of one-half inch would fied that a tique (Tr. 173, inventоry. p. 13-18.) 11. prop- a stand of water on their precipitate pet The cats of the enjoyed Havilands the 123, (Tr. 8-10.) Maxine Havi- erty. p. 11. 174,11. (Tr. 3-6.) run of the utility p. shed. would “very land that little” rainfall stated Each planted summer the Havilands and standing recurrence of the water. trigger a a garden. Through maintained Maxine’s 173, (Tr. 5.) p. 1. canning produce, efforts at freezing the water, commonly stand The which would proved year-round a bountiful for source hours, up twenty-four to often- periods table, the Haviland dinner as well as an four inches in times measured three to enjoyable pastime. While Harold mowed the Havilands’ both in and about depth lawn, and maintained the Maxine tended to shed, garage utility as was evidenced her hobby cultivating of roses in and about (Tr. pp. photographs. 2-13; by testimony and (Tr. 175, the garden p. area. 11. Tr. 176, p. regularly 15-21.) 120-127.) 11. The accumulation also garden area and Ian’s alterations of the and its

submerged the Havilands’ portions driveway. (Tr. pp. 120- ground their surface. 130.) ‍​​‌​‌‌‌​‌‌​​​​​‌​‌​​​​‌​​‌​‌‌​​​‌​​​​‌​‌​‌‌‌​‌​‌‍garage their and its con- protect To jury. The case was tried without a Ex-

tents, customary for Havi- it became the respect evidence with presented tensive was encroaching lands to the water with battle area, drainage natural flow in the (Tr. p. brooms after during and rainfalls. Argyelan’s the nature and effect of con- 130, 19-27.) 11. alterations, ground struction and Argyelan, to then They complained who Tes- and the events heretofore described.1 along wall the com- constructed a concrete the timony spite also that revealed (Tr. 149, 10-18.) p. mon line. 11. boundary presence during with brooms Havilands’ wall, height The which was intended the and after rains to deflect the water from run-off, to to retain the was four five the garage, the as well as fact that Maxine (Tr. p. inches lot surface. Argyelan’s above stilts, eventually placed antiques her on 10-12.) majority implies 11. The that antique proximately worth of $700 $800 flooding wall “alleviated” may the have the frames, dolls, picture and china were dam- by Majori- the problem endured Havilands. (Tr. aged by repeated flooding. p. the ty Opinion, There is no evidence to 27.) unevenly 1. The garage floor settled that effect. Mrs. Haviland testified that cracked; photographs reveal the delete- good the wall “done us no whatsoever” and rious effects of water rot around the base answered “No” when asked: “It [the wall] of wood val- garage, the frame which was problem?” (Tr. p. didn’t alleviate the $3,500. (Tr. pp. ued at 132- approximately 17-20.) 11. Likewise, 133.) shed, utility the which was floor; $1,200, at a new un- required

It is that the had no valued uncontradicted wall settling even had caused the roof line to flooding; testimony effect on the estab- (Tr. 134-137.) pp. tilt. Harold Haviland up lished that water simply the backs against testified that the had the top, the until it the eroded wall reaches gravel driveway, necessitating purchase then it “like cascades over a waterfall.” 19-26; 118,11. 171,11. eight gravel; gravel, tons of (Tr. p. p. 16-23.) Tr. which dumped by spread was a truck driver and The that majority suggests the accumula- Havilands, rainfalls; (Tr. by pp. tion cost 143- $58. occurs “sustained” 144.) He had also testified the water evidence favorable to the tractor; garden statement, invaded tires of support does for both damage to the tires and wheels esti- Havilands occurs was flooding indicated (Tr. 144-145.) at pp. mated very $200 little rainfall —as as one- $300. little 8-10; (Tr. half inch. p. p. 11. Tr. addition, In evidence established that ' 5.) flooding forced the continual had Havilands the spring plagued garden; still their annual Harold abandon flooding, green the Havilands initiated this action that the testified against wife, Argyelan simply and his as owners of mold pervasive grow would not complaint, In their property. anything. produce value lost they sought damages annually reason of at suffered was estimated $300 $400. water, 137-138; repeated 175.) standing (Tr. p. instances of Due pp. Tr. they water, which alleged by Argye- standing were caused ulti- Maxine’s roses were review, Appeals 1. The of the Court also Consistent with our standard requires observed that follow- the evidence revealed the all the us to examine evidence most ing: judgment, the record reveals it favorable part not “due to lack interest” on the of was generalized problem drainage “Because of a meeting Havilands that the was not held. the neighborhood, City Indianapolis in the the neighbors testified she talked to about Maxine offered to meet with residents to con- discuss offer, city’s they were not but interested the drainage Apparently struction of a ditch. the standing they in water because did not have meeting was held never due to lack inter- yards. their est.” 418 at N.E.2d 571. construed the enemy “common rule” which mately plants the were re- destroyed and (Tr. 15-27.) p. Only moved. 11. governs “surface water” in Indiana. Id. at standing Havilands’ benefited from eats 575-576. water; they enjoyed the run of the house petitioned The Havilands then this Court whenever the flood routed them from the to reverse the decision of the Dis- Second utility (Tr. p. 6-10.) shed. 11. Appeals trict Court of and reinstate the Finally, acknowledged the Havilands that judgment of the trial court. The Havilands problems plaguing the surface water their Appeals maintained the Court of had violat- deprived had them of their hob- required ed the standard of review it was gardening yard work—and in bies— had apply2 Appeals and that the Court of turn diminished their enthusiasm for their in contravened this Court’s decision Conner (Tr. pp. 174-178.) as a domicile. Woodfill, (1890) v. 126 Ind. 25 N.E. 876. Maxine indicated it was difficult to take petition pend- While the Havilands’ was together, deluge vacations lest another fur- Court, ing before this our Third District ther damage possessions ga- stored in the surface Appeals confronting Court of rage utility (Tr. p. 4-8.) shed. 11. which, disputes legal princi- both in opined repeated flooding She that considerations, ples and factual bore on the the property marketability; had reduced its Hoelscher, Havilands’ In Rounds claim. v. time, at the same she it would indicated $30,000 (Hoffman, $35,000 Ind.App. 428 N.E.2d 1308 couple cost for the J., result), Judge move to a concurring house similar to their residence at P. in Garrard (Tr. 20.) p. South Auburn. 1. engaged lengthy in a and well-documented analysis employed of the three doctrines in evidence, Based on the trial court water; for ultimately, the law of surface found for the Havilands and awarded them hereinafter, majority reasons discussed $7,500 denied, damages; the court how- that of the Third District concluded ever, prayer injunctive the Havilands’ be aban- doctrinе should relief. and Anna then Argyelan Steve simply doned as too extreme to warrant pealed. Id.; also, see Gilmer application. continued Appeals The Second District Court of re- County, v. Board of Com’rs of Marshall court, versed the of the trial con- (Hoffman, N.E.2d Ind.App., 428 cluding: J., result). concurring P. “Because there is no evidence in the rec- our ord that in the Confronted with this conflict between Argyelans engaged tortious, districts, positive, wrong majority of this collecting appellate sur- discharging face water and it in a concen- law of today Court rules that this state’s trated flow upon neigh- the land of their governed by pro- water should be bors, Havilands, the ‘common years ago nouncements rendered prevails rule’ and the decision of the trial Fickas, (1878) v. Taylor, Administrator court must be reversed.” Argyelan v. Fickas, quoting majority Ind. 167. In Haviland, supra, (emphasis origi- at 575 may prop- holds that a landowner alter his nal). in manner which causes surface erty quantities” water to stand in “unusual Judge Sullivan dissented on the bases that Only limitation is neighbor’s land. one majority disregarded particular had facts, “may a landowner misapplied precedent, expressly recognized:3 case and mis- wise, Appeals Clearly, failed to state that there is merit in the Havilands’ con- the Court tention, Sullivan, had recognized by Judge after the Havilands the wall was built light complained Argyelan, an ironic twist majority Appeals of the Court of did violate Appeals found the the fact that the Court of See, e.g., the standard n. of review. dispositive. presence of the wall majority Appeals of the Court of indicated “protected property.” the wall the Havilands’ suggests “Indiana also 3. The Haviland, Argyelan supra, at 574. Absolute- doubtlessly permit malicious or would ly supports no evidence that conclusion. Like- drainage rights employment of one’s wanton Obviously, or concentrate

not collect surface water and these facts suggest that even it, body, upon neighbor.” cast in a Ma- within the semantics of the limitation de- Court, scribed the jority Opinion, supra, citing Ar- Cloverleaf gyelan duty violated his Farms, Surratt, thé Havilands. Ind.App. Inc. v. He “collected” falling all surface water Co., 349 N.E.2d and Gene B. Glick upon structure, the roof of his business Inc. v. Marion Corp., (1975) Construction “concentrated” it by virtue of the 165 Ind.App. 331 N.E.2d 26. downspouts, and “cast” it toward the Havi- glance, At first recognized the limitation There, property. lands’ up it backed by the majority superficially appealing against the high four-inch wall in a “body” suggests degree that a certain of rea- and cascaded onto the property. Havilands’ required sonableness is neighboring land- Indeed, these appear bring facts would owners with respect to surface waters. The parameters this case within the of Conner majority’s application of the limitation to Woodfill,supra. Conner, a church had us, however, the cause before reveals that been downspouts constructed with the limitation is virtually meaningless and discharged the water collected on one-half is, that the practical doctrinaire rule for all its roof property. toward Woodfill’s purposes, the sole rule. downspouts eight released the water feet The record indicates that the bulk of the from the boundary common line. From water regularly plaguing the Havilands is there, water, channels, the any without repelled water from the roof of one ditches, flow, or drainage guide tiles to of Argyelan’s commercial structures. Pho- traversed Conner’s and flooded tographs and testimony establish that the Woodfill’s tract. This Court affirmed the pitches entire roof gently Conner, the south and against stating: entered drains toward the Havilands’ property. “The rain-fall upon building the is shed- The building’s three downspouts are located ded, be, may as near as one-half to the on the south side of building, the the side west; east and the othеr half to the at toward the property. Havilands’ Water re- the southwest and northwest corners of pelled from the roof building is channeled down spouts are down to receive through spouts carry Argyelan’s building onto the water ground which is to the separate surface. feet shedded west side of said Twenty building; passing through spouts base of these building from the Havilands’ passes ap- the water off the twenty-foot strip line. That pellees’ appel- lot and on the lot of the land has a surface of crushed stone and lant, injury, to his etc. slopes gently toward the proper- Havilands’ ty. “The appellees trespassers While the crushed were whenev- permits stone some they er shed absorption water, the water from their build- strip is appar- ing so appellant’s as to throw it ently insufficient to handle the quantity of lot.” 126 Ind. at bears; N.E. at 876. water it regularly the testimony is uncontroverted that after moderate rain- Conner is consistent with the rec- limitation falls, the eventually up backs and ognized by the majority; inasmuch as no cascades evenly over top significant wall factual distinction exists be- onto the property. cases, Havilands’ tween the this cause would also ” under the exception already doctrine . . . . Ma- nel and so fall within the

jority Opinion, supra. legerde- recognized Farms, It is semantic and defined in Cloverleaf suggest Surrat, main a distinction between inten- Inc. v. negligent disputes. tional acts and ones in the context of legislature Our has refuted the distinction in requires legal surface water It no (Burns 1973), 34-1-52 -1 § lnd.Code where it drainage problems education to realize that are defined property. actions interference the use of rarely, ever, malice; product if of intent or relevancy The statute and its occurred, if such a case the intentional charac- question before us is discussed within the con- blantantly ter would be manifested a chan- dissenting opinion, text of this infra. pear when, of the limita- the Havilands application only warrant can rue day the tion. promptly filing suit, rather than they com- plained to Argyelan prompted and his con- however, majority, attempts The to dis- high struction of the four-inch wall which Conner, tinguish stating: briefly impedes and diffuses the flow “like intimate, “We do not as erro- Plaintiffs’ a waterfall.” It is doubtful that the Havi- neously infer that the of Appeals Court lands care whether the water enters their did, that a distinction can be drawn be- state; in a property channel or in a diffused tween the case before us and the Conner it is certain that the Havilands will not case upon the basis thаt Defendants’ why understand the three to four inches of downspouts are twenty situated feet standing water in garage, and about their from property the line whereas in Conner shed, area, garden driveway tool and is “of were but they eight feet removed. The no proper- moment” because it enters their distinction lies in the of the character ty general “diffused to a Majority flow.” flow adjoining as it entered the property. Opinion, supra. That impounded water was once or chan- neled can be of no if it is moment dif- however, Developers, may take comfort fused to a general point flow at the longer in the that they fact no need to entering adjoining Majority land.” foresee problems the surface water their Opinion, supra. might adjacent work cause residents. No longer necessary will it be explain does not what was the take custom- ary precautions “character” such of the “flow” as the installation of involved Con- ner; here, drainage basins, the facts of tiles or catch either of simply Conner provided simple revealed that would have solu- discharged water tion downspouts, flooding without to the foisted on the Havi- ditches or channels it, guide lands. All they escape liability flowed need do to adjacent tоward the damage for surface water property. which their work adjacent causes residents is to wall build a The only factual distinction between Con- at boundary briefly line to case, ner and the instant insofar as the impede and diffuse the flow. With careful “character” of respective “flows” is con- matter, adherence this “determinative” cerned, here, wall, is high that a four-inch developers may pave elevate their property, which only temporarily impeded the water surface, large buildings, construct and on its way to the property, pro- Havilands’ capacity property eliminate the vided a shelf for the water to cascade over water, absorb without impunity “like case, however, a waterfall.” In each legal liability damage fear of any adjacent water entered the resulting flooding may adjacent cause resi- general “diffused to a flow.” Majority dents. Opinion, quoted, supra. Judge Like Dis- Sullivan Third

Perhaps the majority basing its distinc- Appeals, trict I Court do not believe the Conner, tion on the fact that in this Court precedent jurisdiction supports case of this employed the disposing word “throw” in proposition Rather than a result. the case. To seize the usage of the semantics, jurisdic- rule which rests on word “throw” would elevate semantics over when, recognize tion should as here light substance in of the fact that no Conner, and in discharge ditches or a landowner’s channels were involved in Con- ner; unreasonably prop- interferes with a the difference “throwing” between prior usage “throwing” erty existing and not owner’s adjacent water onto land, enjoyment recovery of his be dependent upon would be should whether briefly permitted flow was it was in Conner. impeded by a cement —as wall on its way property. hardly appropriate It is that our surface If that dispositive be the factor in requires deter- water law homeowners such as the mining water, liability Havilands, in our law of long-standing prop- who have a lot, join

erty greater interest in their home and the ranks of numbers when it water, to suffer deluge but also to has not been way demonstrated that their indirectly expense share of another’s way.” Majority Opinion, supra. better use for commercial however, Any way,” “better will never be gain. majority may suggest While the that found if this willing Court is not even application enemy strict of the common examine the rationale behind other conclu- doctrine “is as fair to one as it is to anoth- strengths sions and address the and weak- er” (Majority Opinion, supra), it should be nesses of positions those on their relative recognized rarely that it is the residential merits. property owner who so alters his property, The in majority recalcitrance the by either the large buildings construction of respect self-apparent. fully While it is areas, or the paved installation of massive jurisdiction day aware that no other in this that absorption capacity the of the land is age adopt and would position has virtually eliminated. taken, its analysis beyond does not extend say That is not to de- homeowners cursory glance summary and recitation of serve any advantage “sym- on the basis of approaches some of employed else- Instead, pathy.” Majority Opinion, supra. where; a citation to American Law Re- it is to observe that there need be no “ad- ports4 hardly can be said to fill that void. vantage,” approach that an evenhanded available, disputes however, and that Analysis begin, could with the a certain reasonableness must obtain in the jurisdiction. case law of our own The term results of disputes. surface water That was “surface water” refers to water from fall- spirit focus and the of the Third Dis- ing rains or melting snow which is diffused trict’s decision in Rounds. ground, over the surface of the and which flows running over or the surface Court, course, The of this majority has land, lay of the including natural “expressly disapproved” holding elevations depressions, and has no chan- Rounds. It is majori- unfortunate that the guide nels or banks to its flow. Gwinn v. ty has examining debunked Rounds without 225; (1955) 560, Myers, 234 Ind. 129 N.E.2d regarding considerations the common Capes Barger, (1953) 212, v. Ind.App. enemy rule prompted the decision Questions 109 N.E.2d liability 725. for and were fully discussed therein. damages by caused surface water in Indi- It is “changes true that in the established generally governed ana have been law” are not necessarily simply warranted “common enemy” doctrine. because imperfect. it is Majority Opinion, healthy Stare decisis re- warrants doctrine, which the both spect as jurisprudence. a cornerstone of our applies simplistic states and in its most however, Prior to today, the law at issue form, extreme origins public poli- had its can hardly be described as “established” or cy favoring improvement develop- land understood,” “well in view of the three McClure, ment. Kinyon & Interferences separate positions opin- and four different Waters, with Surface 24 Minn.L.Rev. 891 ions Appeals issued the six Court of (1940); Dobbins, Drainage, Surface Water judges Argyelan. involved in Rounds and (1961); 36 Notre Barkley Dame L.Rev. 518 Only today has the law become “estab- Wilсox, (1881) 140, Am.Rep. 86 N.Y. lished” —at least for the moment. also, (1979) 519. 93 A.L.R.3d 1193 See law, it is establishing that of course Sometimes characterized as the “Massachu- true that “we feel compelled should not setts rule” based on its first American Majority Opinion, supra, citing enemy 4. See before us and 93 A.L. discarded the common (1979). R.3d 1193 An examination of the lead doctrine the rule of reasonable use. Within reported annotation, case start; approach in the annotation would be a the context of the Bruno, adopted by majority in Butler v. 115 R.I. is characterized Supreme 341 A.2d 93 A.L.R.3d common 93 A.L.R.3d its “extreme form.” doctrine analyzed fully Court of Rhode Island the issue at 1199. plication Co., requirements in Luther v. Winnisimett the strict of either the com- (Mass.1851) 9 Cush. ‍​​‌​‌‌‌​‌‌​​​​​‌​‌​​​​‌​​‌​‌‌​​​‌​​​​‌​‌​‌‌‌​‌​‌‍Massachusetts has mon enemy or civil law rule.” Butler v. since declared the doctrine a dead rule in Bruno, (1975) 264, 274, 115 R.I. 341 A.2d jurisdiction. Badoian, Tucker v. 735, 741, 93 A.L.R.3d J., Mass. 1195 (Kaplan, N.E.2d Eighteen jurisdictions, as well as the 1940, however, concurring). As late as Institute, American Law today embrace employed doctrine was twenty-two juris- outright the rule of reasonable use. These dictions. 24 Minn.L.Rev. at 902-3. jurisdictions rejected have the civil law rule Coterminous recognition with the and ap- doctrine out of an plication of the common enemy doctrine in unwillingness to countenance the uncon century 19th jurisprudence American which, scionable results like the Havilands the development rule, of the “civil law” here, endure follow application from a strict first employed Louisiana. Orleans Navi- See, of either rule. Weinberg v. Northern gation Orleans, (O.S.1812) Co. v. New 1 Development Corp., (Alaska 1963) Alaska Martin 193. The generally proscribed rule 450; 384 P.2d Marment v. Castlewood any interference with the natural flow of Club, 483, 105 Country (1973) Cal.App.3d 30 Despite water. its obvious negative 853; Cal.Rptr. Farms, Weldin Inc. v. Glass impact on land development, rule man, 500; (Del.1980) Rodrigues 414 A.2d v. 1940 employed eighteen jurisdictions. was State, 509; (1970) 156, 52 Hawaii 472 P.2d 24 Minn.L.Rev., supra, at 896-7. Klutey v. Commonwealth Dept. High 766; Meanwhile, ways, (Ky.1967) a 428 Tucker v. approach third rule of S.W.2d —the Badoian, supra (Mass.); reasonable recognized Ager use —had also been Johnson v. beck, 539; Co., (1956) 432, Bassett v. 247 Salisbury Mfg. (1862) Minn. 77 43 N.W.2d Powers, Nev., N.H. 569. Unlike enemy County (1980) the common doc- Clark v. 611 rule, 1072; trine and civil law which were founded P.2d Micucci v. White Mountain on principles law, Co., of property (1974) 436, the rule of Trust 114 N.H. 321 A.2d 573; Dist., reasonable use concepts Hopler embodies of tort v. Morris Regional Hills essence, 336; law. (1957) 409,133 N.J.Super. reasonable use rule 45 A.2d Pen Aiken, 201, strikes balance between dergrast (1977) the common ene- v. 293 236 N.C. 787; my Co., doctrine (N.D.1967) and civil law rule. A Jones v. Boeing landown- S.E.2d 897; er permitted to alter Spade surface water drain- 153 N.W.2d v. Rock McGlashan age part ledge Development of the Corp., reasonable use of his Terrace Condo 1196; 55, property thereby (1980) cause some harm 62 402 N.E.2d Ohio St.2d landowners, Bruno, long supra (R.I.); so as the inter- Butler v. Mulder v. 884; (1971) 544, ference with an adjacent Tague, landowner’s use of 85 186 N.W.2d S.D. Renault, Inc., property (Tex.1968) not unreasonable. Franklin Houston v. 431 911; 322; Durgee, (1901) 186, Utah, v. 71 University N.H. 51 A. 24 v. S.W.2d Sanford Minn.L.Rev., 741; (1971) 285, supra, Perhaps at 904. 26 Utah 2d 488 P.2d be- State Deetz, 1, cause the rule (1974) embraced tort 66 Wis.2d 224 concepts, ac- N.W.2d. Accord, ceptance of the rule of (Second) reasonable use Restatement 1940, (American slow to come. By jurisdic- two Torts 821-833 Law Institute § 1979). tions had adopted the rule of reasonable use. Co., Bassett v. Salisbury Mfg. supra; Virtually every jurisdiction, other also Rochester, Bush v. City (1934) 191 Minn. engendered by mindful of the harsh results

591, 255 N.W. 256. application a strict of either the civil law or

Today, however, doctrines, three different enemy applied sig- has proaches occupy wholly opposite positions respec- nificantly modified version of their terms of the respect they enjoy equity from this tive rules in order accommodate jurisdictions. nation’s As the con- proper and achieve a allocation of the costs “Today, cedes: quarter we enter the last arising from an alteration of surface water of the century, jurisdiction 20th no follows drainage. particu- These decisions warrant

986 383, light majority’s (civil

lar attention in self- 152 A.2d 669 law rule modified to statement, serving made without citation to preclude changes unreasonable in quantity authority, that “A of surface water any legal discharged substantial or manner of flow); Co., have Deason permitted (1927) number of states but minor v. Southern R. (common 142 140 enemy modifications ...” to their rules. S.C. S.E. 575 Majority doctrine modified to Opinion, supra. comport The modifications of with law of other nuisances); Seventeen, jurisdictions “minor,” Inc. v. are at all as the Pilot Life Co., (1974) amply See, Ins. 215 Va. 205 following cases demonstrate. S.E.2d 648 Vann, (common 153, 182 enemy require rule e.g., Dekle v. 279 Ala. modified to be used in (exception to civil a manner which ap So.2d 885 law rule plied areas); Smith, unnecessarily injure does not in urban Turner v. another); McNicol, (1974) (1950) 217 Ark. Morris v. (com S.W.2d 110 (common mon Wash.2d 519 P.2d 7 preclude enemy rule modified to land doctrine modified to doing require owner from harm reasonable us- unnecessary to ad jacent Borland, age property). properties); generally, Hankins v. See A.L. R.3d (civil Colo. P.2d 1007 law rule modified to forbid landowner from al jurisdictions Some which have found it tering quantity manner in which water is necessary modify discharged upon adjacent landowner); Fal simplistic from its doctrine form —or to dis Association, Inc., (1973) co v. James Peters patch altogether it recognized its —have 442, (common 165 Conn. 335 A.2d 301 ene particular inadequacy applied to urban my rule modified to forbid landowner from See, water disputes. e.g., surface Chamber increasing altering amount or natural flow Ciaffoni, (1953) 430, lin v. 373 Pa. 96 A.2d of adjacent properties); surface water onto 140; Seventeen, Co., Inc. v. Pilot Ins. Co., Wrecking (D.C.1972) Ballard v. Ace 289 The majority should have examined what (common A.2d enemy 888 rule modified to prompted it is that all jurisdictions other require property); due care in alterations of adopt either outright to the rule of reasona- 179, Kopseiker, (1953) Cundiff v. 245 Iowa ble adopt significantly use modified (rule 61 preclude N.W.2d 443 modified to respective version of their We rules. stand material and undue increase in amount of many alone for reasons. displaced); Lindberg surface water v. Lem jurisdictions, cited, Many previously 623, enager, (1979) Ill.App.3d 73 29 Ill.Dec. simply unwilling have been to countenance (civil 392 N.E.2d 382 law rule modified extraordinarily inequitable results by husbandry exception); Battisto v. Per which follow from application a doctrinaire kins, (rea 210 Md. 124 A.2d 288 enemy of the common rule. Other consid- rule); sonable usе modification of civil law erations, however, have also sounded the Steakley, (Mo.App.1971) Minton v. 466 death knell of the doctrine. (common enemy S.W.2d 441 doctrine modi fied requirement that alterations of recognized It been has the common property and surface water flow be reason enemy doctrine agrarian was born of an able); Snyder Valley v. Platte Public age, Power when it was a sacrosanct view of the Dist., Irrig. & 144 Neb. 13 populace law and the that a landowner (common enemy N.W.2d 160 rule modified he prop- could do whatever wished with his by negligence standard); Bruno, Musumeci v. erty. supra; Butler v. 24 Minn.L. State, (1974) App.Div. Rev., instance, 351 supra, N.Y.S.2d at 899. In (common enemy rule modified max Taylor, when this Court decided Adminis- im Fickas, that one must use supra, manner trator v. penned which does injure another); that of maxim that the majority today, invokes Roder, Iven v. (Okla.1967) 431 percent P.2d 321 16.2 of Indiana’s citizens resid- (common enemy doctrine modified by Department rule ed in urban areas. of the Inte- reason); Westbury rior, Office, Realty Corp. v. Lan Popula- Census Statistics of the Center, caster Shopping Inc., (1959) 396 Pa. tion of the United States at the Tenth II, Census, 1, 1880, perspective. 58-9 and new While the pp. majority Table has June considerations, IX, (1883). refused to examine these pp. 448-9 Table prompted is these matters which have decided, Fickas was years In the 104 since of the widespread reexamination doctrine however, significant undergone Indiana has virtually unanimous conclusion that housing changes demographic in its way.” there is a “better our Hoo- Today, percent 64.2 patterns. environs. population inadequacies enemy sier resides in urban of the common Commerce, Department of applied modern-day United States doctrine as Census, Popu- of the disputes fully Bureau Census were and ex- discussed lation: Number of Inhabitants and Charac- plained by Ap- our Third District Court Indiana, vol. Population teristics of the peals in Rounds. For the of the (1982). part Coupled high-den- with the Court, Judge Garrard observed that modern sity housing patterns technologi- have come disputes surface water are “extremely fact cal be- changes question bear on the require flexibility sensitive” and a certain fore us. not available in application a strict of the Hoelscher, rule. Rounds v. enemy Westbury Corp. As recognized Realty supra, application at 1312. A literal Center, supra, Shopping Lancaster doctrine, recognized, he turns surface water areas technological ability pave massive questions struggles into semantic rаther ground until developed surface was not evidentiary disputes: than substantive inception after the of the common doctrine; problem may “Another arise when similarly, ability radically facts of a situation are forced into an drainage patterns alter natural exposition surfaces has of the rule that results in the followed the creation import being ignored. massive real earth-moving Together machines. of the evidence developments, Argyelan, supra, with these as well as refine- industry exception ments in the construction doctrine and its for collected changes shopping patterns, strictly applied in our the last channeled waters were thirty years yielded have an urban land- facts and since no water was found to collected, scape giant dotted with struc- discharged, commercial have been or con- tures and vast shopping plazas. specifically, malls and centrated the court found no paved parking though, Judge The areas necessary liability to serve even as Sullivan dissent, points customers of these various business en- out in his the trial court terprises tight geographical juxtaposi- lie in the water the wall had found came over housing. flooding tion with high-density residential like a waterfall and created a Major quantities before.” problem of surface water from fall- which had never existed ing snow, melting rain and once absorbed Id. at 1315. ground,

into the repelled are now that “In its Judge Garrard also observed vast parking roofs and lots and seek lower criticized as encour- strict form it has been drainage patterns. via unnatural aging might contests in which hydraulic is peace a breach of the right makes The majority observes that “There has at 1311. He continued: threatened.” Id. been no change the forces that cause ” neighbor- water to run downhill . .. . It is true that us we find the case before “[I]n decided, natural ing as in when Fickas was land owners who live a level gravity, depression essentially forces of and who were indubitably established Newton, unabated, by filling continue until was done. as the facts with each other presents of this case also the situa- amply Additionally demonstrate. The this case con- capacity developers of our to eliminate criticized the commentators tion ground absorption enemy rule. Its present ability cerning and their hy- to in a upper application transform a lower tract into the strict would result tract, however, each owner language has cast the draulic contest in which vis-a-vis century legal prоpositions nineteenth in a would become the lower owner exceptions of the last filled lot. He would the owner modifications that have then right up have an absolute to build appended through years been his lot and cast the waters back original concepts, two we fail to see how neighbor. agree We that surface water the modern versions of either afford more recognize is a common but we also predictability than the rule of reasonable deserving it is of a common solution and However, use. even if we were to as- right an owner has no absolute to possess higher pre- sume that each did a benefit by shifting his own land his bur- factor, dictability certainty a desire for den neighbor protection to his under the liability should not and must not serve as of a antiquated strict and rule of law.” judicial pardon a for the unreasonable (emphasis added). Id. at 1315 conduct which has been manifested any society.” landowner our modern “antiquated In this perpetuating rule Bruno, law,” supra, Butler v. 115 R.I. at majority of this Court has over- looked all 341 A.2d at 93 A.L.R.3d at 1191. these various considérations and myopically single “pre- focused on a factor: “predictability” In addition to its ration- dictability.” question, Without the doctri- ale, has suggested, by quoting naire applicаtion of the common rule Judge opinion Hoffman’s in which he con- ago as enunciated 104 years the most Rounds, curred in ques- result that the predictable of the alternatives available. tion legisla- before us should be left to the What is the nature of “predictability” here, Lacking majority agree ture. I gained, developer however? A would-be legislature bring should now act to legal obligations can assess his to jurisdiction into the century. 20th landowners prior construction.' He can majority ought examine, however, rest assured that if it is necessary to cut (Burns 1973),where, Ind.Code 34-1-52-1 § costs, drainage tiles and/or catch basins years ago or three years after Fickas may be liability. foresaken without fear of decided, legislature our defined its addition, lawsuits will summarily be re- proach questions such as that before us. solved; developer unless a acted so blan- The statute reads: tantly dig as to a channel through to an health, injurious “Whatever is or inde- adjacent property, legal no real question cent, senses, offensive or an presented. will be obstruction to the property, free use of so Also, we gained predictably— will have — essentially to interfere with the com- unpleasant specter of the inevitable enjoyment fortable of life оr property, lawsuit wherein the victimized homeowner nuisance, subject of an action.” is forced actually to vacate his home by (Our emphasis.) virtue of invading surface water. The predictable it, offensive and Defined in the statute is an disposition of action to recov- however, damages need er hang jurisdic- enjoyment over this to the use and of tion like the sword of Damocles. The value under theory of nuisance. Its of sorts, predictability opposed of these as applicability ‍​​‌​‌‌‌​‌‌​​​​​‌​‌​​​​‌​​‌​‌‌​​​‌​​​​‌​‌​‌‌‌​‌​‌‍injuries is not limited to occa- to the benefits gained by dispatching mediums; to be particular sioned via legisla- doctrine, the common enemy were discussed ture stated that caused the un- “whatever” in the lead case of the A.L.R. citation interference, cited lawful the nuisance action by the majority: employed by proper- could be the victimized addition, ty

“In owner. In embracing injury of to the health principle reasonable use, gravamen we are or senses is not the sole support aware of those whose Sullivan, O’Neill, of Yeager either of statute. Inc. v. property-based the two rules & 466, (1975) based on Ind.App. their conviction 163 324 N.E.2d 846. that adher- Rather, stated, ence to gives legislature either rule as to a concerned also landowner the advantage predictabili- catalyst of of the statute is “an obstruction” to * * * ty. judicial With the numerous enjoyment property. the use and

989 boards, Obviously, LaZear, action of as in statutory (1903) nui- LaPlante v. sance, here, though not pleaded applica- 433, Ind.App. 68 N.E. duty and his ble to the victims of unreasonable altera- remove natural accumulations of snow and tions in drainage surface water such ice). Havilands. They very suffer a real and As precedent embodied within our case serious obstruction in their use of their statute, and nuisance our ultimate concern driveway, garden, garage, utility shed. any instance must continue to be wheth Consistency in our laws would deem that er the circumstances justify shifting the our common law surface water rules com- loss from the victimized owner to port with our statutory nuisance-to-proper- person responsible for the interference ty principles and that the Havilands be enjoyment is, to the use and property. It permitted recovery, just as would be the Muehlman, as we question stated in case if they proceeded had under the statu- reasonableness; respect the rule reflects for tory remedy also available to them. the Latin maxim expressly recognized in In terms principles of fundamental law, our property сase sic utere tuo ut alie- liability, justification there is no rational (so num non your property laedas use as not for distinguishing between interferences injure rights another). Indiana with the use of property occasioned sur- Hudson, Motorcycle Ass’n v. Ind. water, face as opposed to other mediums 775; App., 399 N.E.2d Albright v. Crim. pollution, sound, See, such as or vibration. Ind.App. 185 N.E. 304. The e.g., Keilman, (1971) Muehlman v. 257 Ind. particularly applicable maxim is to surface 100, 272 (unreasonable N.E.2d 591 noise which, water disputes Judge Garrard ac from adjacent operation tractor-trailer observed, curately “extremely are fact sen recovery); would warrant Friendship Farm sitive.” Camps, Parson, (1977) Inc. v. Ind.App. 73, 359 (damages injunctive N.E.2d 280 Finally, has observed that it relief by adjacent warranted marching “disposed drainage is not to make commis- operation band creating unreasonable already sions of our overburdened trial noise); Yeager Sullivan, (noxious supra, & Majority Opinion,supra. courts.” It is not odors from adjacent hog-raising operation prerogative arbitrarily Court’s warranted damages); award of Cox define which invasions of a homeowner’s Schlachter, (1970) 147 Ind.App. 262 property legisla- warrant relief when the (odors N.E.2d 550 mice-rais- ture has established cause of action for an ing operation warranted recovery dam- “enjoyment” “obstruction” “use” and ages). also, (Second) See Restatement 34-1-52-1, of property. supra. Ind.Code § Torts p. (American § Law Institute Rather, duty highest it is our as this state’s 1979; Minn.L.Rev. perpetuate guar- court to the constitutional jurisdictions Other have recognized that antee accorded our citizens in Article no rational distinction exists by which to 12 of the Indiana Constitution: Section exclude surface water from the realm of man, open; every “All courts shall be See, principles. e.g., nuisance law and But- injury person, done to him in his Bruno, ler v. supra, (“the at n. 6 invasion of property, reputation, shall have reme- property by one’s surface waters can be a of dy by due course law. Justice shall be nuisance, no different from by an invasion freely, pur- administered and without noise, vapors, like”); noxious or the Deason chase; denial; completely, and without Co., (common v. Southern R. supra speedily, delay.” and without doctrine expressly comport modified to Constitution, Consistent with our the Court cf., law); Jones, nuisance Rossow v. Appeals of has held that certification Ind.App., (insofar 404 N.E.2d 12 as land- drainage proposed sys- lord’s commission that a duty to maintain entryways condition, in a safe drаinage adequately no distinction tem of will handle sur- exists between a responsibility landlord’s relieve repair face run-off does not a devel-

oper adjacent I dissent. legal from his duties to land- The Second District Court of Co., owners. B. Glick Inc. v. Marion Gene Appeals’ opinion and decision should be re- Corp., Construction vacated, versed and the trial court should be reinstated. majority’s suggestion that our court system provide does not have time to

potential a remedy GIVAN, J., to those who suffer C. concurs. plight of the Havilands is an affront to is, effect,

our Constitution. It a confes- judicial

sion impotence to serve our citi- guarantees,

zens’ as Dean succinctly Prosser

acknowledged:

“It is the business of the law to remedy it,

wrongs that deserve even at the ex-

pense litigation’; of a ‘floodof and it is a

pitiful incompetence confession of on the Roy BAKER, Petitioner-Appellant, M. part of any justice deny court of relief give it will Indiana, Respondent-Appellee. Prosser, court too much work to do.” STATE of Intentional Infliction of Mental Suffer- No. 581S132. ing, Tort, a New 37 Mich.L.Rev. Supreme of Indiana. Court (1939) (footnotes omitted). In all this there is neither nothing new or June Conner, extreme. Our decision in as well as the Third District of Appeals’ Court deci- Rounds,

sion in is consistent with the consti-

tutional, statutory, policy considera-

tions discussed herein. Absent recognition use, the rule of reasonable as it was Rounds,

enunciated in this Court should

adopt a modified version doctrine, jurisdictions as so many Although

have done. majority has not alternative,

addressed this the doctrine

could comport be modified to with Ind.Code 34-1-52-1, supra, or to require

§ undue

harm not be inflicted on landown-

ers, impose or to degree reasonable

care on urban landowners. Any these preclude

alternatives would incredibly

harsh results endured the Havilands.

Instead, of this has re- Court

verted to antiquated an rule of law outside ‍​​‌​‌‌‌​‌‌​​​​​‌​‌​​​​‌​​‌​‌‌​​​‌​​​​‌​‌​‌‌‌​‌​‌‍pale logic legal authority, a rule so

extreme application its doctrinaire

shunned by jurisdictions all other of this

nation.

In these respects, the Havilands endure

not only the unfortunate happenstance of

residing next where the

Argyelans structures, built their business

but also the residing misfortune of in Indi-

ana and falling jurisdiction. within legal

Case Details

Case Name: Argyelan v. Haviland

Court Name: Indiana Supreme Court

Date Published: Jun 3, 1982

Citation: 435 N.E.2d 973

Docket Number: 682S208

Court Abbreviation: Ind.