*1 GASWAY, Robert W.
Defendant-Appellant, LALEN and Wilma Darlene
Charles W.
Lalen, Plaintiffs-Appellees.
No. 67A01-8711-CV-298. Indiana, Appeals of
Court of
First District.
Aug. 10, 1988. Sept.
Rehearing Denied *2 by Highway
north
U.S.
an east-west
culvert,
thoroughfare.
approximately
A
deep,
feet
has been constructed under U.S.
portion Gasway's prop-
40 on the eastern
of
addition,
erty.
In
there exists a series of
culverts constructed under Waterworks
Road. Three of these
con-
culverts are
along
structed
the southern half of the
boundary
western
of the Lalens' lot. The
higher
elevation of the
property
Lalens'
Gasway's,
than that of
Gasway's prop-
and
erty
slightly
declines
from its southern to
northern border.
water
flows
Surface
west,
Road,
from the
under Waterworks
east,
property
and south onto the Lalens'
northerly
and
along
drains
a
portion
property,
the eastern
of the
across
land,
through
and into and
culvert under U.S. 40 further north to a
pond.
water collection
Gasway
At sometime
to 1986
com-
filling
leveling operation
menced a
along
length
the entire
of the southern
Brown, Brazil,
William G.
for defendant-
boundary
of his
leveling
The
appellant.
.
operation
years.
continued for
In
several
Hassler,
Hunt,
Frey,
Mark D.
Hassler &
early July
late June
Gasway
Lorenz,
Haute,
plaintiffs-appel-
Terre
northerly
obstructed the
flow of water
lees.
draining naturally along
por-
the eastern
tion of the Lalens' lot onto and across his
NEAL, Judge.
obstruction,
property. As a result of the
began
water
to accumulate on the Lalens'
STATEMENT OF THE CASE
property,
days majori-
and within a few
Defendant-appellant,
Gasway
Robert W.
ty
by
was flooded water of
(Gasway), appeals
judgment
an adverse
depths.
various
Water also came to within
by
rendered
Putnam Circuit Court
one foot of the back of the residence and
plaintiff-appellees,
favor of
Charles W. Lal-
height
flooded the basement to a
of three
Lalens),
(the
en and Wilma D. Lalen
on
or four feet.
up
The
continued
proper-
their suit for
real
to their
part May
the latter
at which
ty
caused
water.
Gasway agreed
tempo-
time
to construct a
rary
ditch to run to a second
part
part.
We affirm in
and reverse in
ditch, although
located to the east. The
flooding problem,
alleviated the
did not re-
STATEMENT
THE FACTS
OF
along
move it. Water continued to stand
The Lalens
of a resi-
are the owners
boundary
the northern
of the Lalens'
Brazil,
dential
lot
located near
Indiana.
erty and the basement remained flooded to
Road,
The lot fronts on South Waterworks
depth
requested
a
of one foot. The Lalens
thoroughfare,
a north-south
and faces
Gasway
but
refused to
remove
obstruc-
west.
imme-
owns a tract
land
blocking
tion
the natural flow of water.
lot,
diately north of the Lalens'
the south-
boundary abutting
against Gasway,
ern
bound-
Lalens
northern
filed suit
ary
seeking damages
property. Gasway's
injunctive
the Lalens'
relief.
trial,
Following
also bounded on the west
a bench
the trial court is-
judgment
Waterworks Road
sued a
bordered
favor of
Lalens.
law,
its
of fact and conclusions of
credibility
not to consider the
of the wit-
trial court found that there existed a
reweigh
Rather,
nesses or
the evidence.
flowing
natural watercourse
upon
we focus
the evidence most favorable
along
judgment, together
the eastern
with all reason-
Gasway's prop-
Lalens'
and across
able inferences to be drawn therefrom.
erty
improperly
which
had
Only if the evidence is without conflict and
blocked.
the trial court found
leads to but one conclusion other than that
*3
acquired
that the Lalens
an easement
reached, shall we find the trial court's deci-
prescription
drainage
Gasway's
for
across
contrary
sion
to law.
Michigan
Indiana &
Accordingly,
enjoined
land.
Industries,
Elec. Co. v. Terre Haute
Inc.
Gasway to
from
remove the obstruction
(1987), Ind.App.,
588;
507 N.E.2d
Wells v.
drainage
watercourse and
easement and
(1985),
Auberry
Ind.App.,
granting injunctive relief.
through
Argeylan, supra;
a watercourse.
Birdwell, supra;
Loge Realty
Lowe v.
DISCUSSIONAND DECISION
(1966),
Ind.App.
v.
234 Ind.
N.E.2d
blocked the
was erroneous and
contrary to
evidence.
225;
(1895),
v. Bain
142 Ind.
Mitchell
It is sufficient that water
Appellant's
Brief
heavy
regularly discharged
from
rains
Gasway's assertion that the evidence rel-
through
a well defined channel
order
evant
to this issue is uncontradicted is
Presumably Gasway
merit.
is re-
without
constitute a natural watercourse.
Vanda
ferring
testimony
to his
own
wherein he
Yeager
lia R. Co.
stated that
1980 he had constructed a
118,
roadway across the watercourse which would have blocked the flow of water present In the case the evidence es through weight testimony, it. The presence tablished the of a natural water however, reveals that the natural flow of neighbor, A course. who had lived across the watercourse was not obstructed until question, the street from the spring of 1986. testified as to the existence of a natural Mr. Lalen testified that he never noticed *4 waterway flowing in a being a road constructed near the water- portion across the eastern of the Lalens' course. He testified further that his property continuing along Gasway's and erty spring had flooded never property into the culvert under U.S. testimony of 1986. There was also that He stated that a watercourse had in existed Gasway leveling filling commenced his and years location for that over 40 and dia- operation spring in the of 1986 and the gramed specific course of its route Lalens' became flooded within a upon map parties' real estate intro light short time thereafter. In of this evi- duced at trial. He testified further that dence, it was for the trial court to recognizable the watercourse had banks Gasway's leveling operation infer that ob- and a bottom and in it after it water flowed spring structed the in of testimony rained. This was substantiated trial and the court did not err in so neighbor another who had been familiar finding. Finally, with the area since Mr. both Prescriptive III: ISSUE Easement and Mrs. Lalen testified that a watercourse finding In to addition existence of a had existed across the eastern of watercourse, trial court also they purchased since it in 1978 found that the Lalens had obtained an ease- regular and that water had in it at flowed by prescription drainage. ment Gas- light intervals. In of re standard first way maintains that above, view articulated we conclude that finding prescriptive erred in that both a supported by the trial court's decision was easement and a natural watercourse exist- contrary sufficient evidence and was not to demonstrate, however, ed. He fails to how law. findings both are an irreconcilable conflict addition,
in the result rendered.
Gas-
way
finding
asserts that the trial court's
on
II;
ISSUE
Obstruction
contrary
this issue is both
to the law and
Gasway next contends that
the trial
theory
the evidence. Because either
will
determining
court erred in
that he blocked
result,
support
our resolution of Issue I
spring
the watercourse in the
of 1986.
further
makes
consideration of the issue
argument
entire
on this issue moot.
consists of one sentence and is as follows:
Monetary Damages
ISSUE IV:
The evidence was uncontradicted that
Gasway next contends that
the trial
Gasway, by
had raised the
of
level
awarding damages.
court erred in
In its
allegedly
his
which
constituted
order the trial court awarded the Lalens
Lalens,
above that of
and
$14,500.
amount,
$9,500
Of
was
reason,
court
in
that
that
repairing
awarded for the cost of
the resi-
spring
or summer of
dence,
foundation,
structure,
including
septic
systems,
ny
and electrical
and
from
and
the owner of a construction com
pany specializing
foundation,
septic
$5,000
sys
permanent
was awarded for the
re-
tem,
duction
the value
the real estate re-
and sewer work. He stated that it
sulting
notoriety
from the
had been
experience
standing
his
wa
flooding.
top
caused
ter on
septic system
of a
would cause
system
trial court awarded the Lalens
clog
$150
to
proper
not function
month,
ly.
the reasonable rental value of the
He testified further that water must
property prior
damage,
to the water
from have caused holes and
cracks
the foun
allowing
seep
15, 1986,
dation
water to
July
in and accu
to the date the obstruction is
removed.
attacks each of the
mulate
the basement. He estimated that
being improper
contrary
amounts as
to
replacing
septic
the cost of
system
the evidence.
$1,800
would be
and the
repairing
cost of
$2,300.
the foundation would be
There
computation
also testimony
was
walls within the
strictly a matter within the trial court's
damaged
home were
and would cost
Glesing
discretion.
Smith
repair,
ruined,
carpeting
costing
was
App.
degree
1204
court's
that a
value for the
of the obstruction and
the trial
argues that
erroneous
impairment
Damages
existed was
of use. 25 C.J.S.
natural watercourse
injunction
issuance of the
84,
(1966);
and therefore
Damages
at 926
Am.Jur.2d
§
>
408,
(1988).
damage
erroneous.
at 492
When
§
Foster v.
trial court did not err
unlawfully obstructed.
court
Birdwell,
flow of water
lies to
(1979),
[12]
properly
protect
It is well
Malsbary
supro;
existed whose flow
determined that a
in
As
settled that an
right
a natural watercourse.
Davidson
examined
in
524,
imposing
Accordingly,
an unobstructed
N.E.2d
above,
v. Mathis
injunction
an
injune-
364;
-
inbe
damages
nevertheless consider
particular case before
house,
tion of
921-924
restoration.
fixed,
§
separate
error.
as with the structural
at 485-486
fair market
(1966)
are
elements of the
appropriate
C.J.S.
22 Am.Jur.2d
(1988).
measure is the
value,
us,
Damages
both measures of
Therefore,
with
or the cost of
damage
damage.
respect
Damages
§
award to
diminu
84a,
in the
I
against Gasway
perma-
tion
to remove and
majority
rental
as an
disallows
value
nently
maintaining
refrain from
the ob-
damages
appropriate
solely
measure of
be-
struction.
cause Lalens did not lose total use of the
contemplate renting
they
nor did
reasons,
judgment is
For the above
this, I
premises.
my
believe
col-
affirmed.
leagues
err. The measure
Judgment
part
affirmed in
and reversed
appropriate
though
enjoy-
even
the use and
part.
destroyed.
ment is diminished rather than
Highway
Indiana State
Commission
See
ROBERTSON,
J., concurs.
(1976) Dist.,
App.
Pappas
2d
169 Ind.
SULLIVAN, J.,
part
concurs
denied,
N.E.2d
trans.
266 Ind.
part
opinion.
dissents in
with
Furthermore,
360 N.E.2d
a landowner
SULLIVAN, Judge, concurring
part
may recover fair rental value for interfer-
dissenting
part.
ence
the use of the
even
with
though
contemplate
he did not have
I, II,
I
III
concur as to Issues
and V. As
*6
arrangement
per
with another
valid rental
IV,
to Issue
I dissent.
(1979)
Rogier
1st
son. See Wallace
Ordinarily,
damages
recoverable
to real
Dist.,
303,
Ind.App.
182
correctly assessed for a of value. reason, however, very
For this
damage award is erroneous. Diminution of injury
value is the which is measure Therefore,
temporary be cured.
where, here, as has been or remedied, prospec-
will no be reasonable purchaser properly past
tive could consider
publicity regard present with value. For reason, notoriety or inappropriate
factor an consideration. (1988). Damages
See Am.Jur.2d § (1910)
As stated in Delano v. Smith
Mass. 92 N.E. 501: principle injury
"On follows mere reputation of real estate or the
supposed resting diminution of its value grounds
on whimisical or sentimental or
arising from dictates of custom or taste
do not constitute waste. These consider- nothing have
ations to do with material
substance, depend upon but evanescent intangible preferences prejudices.
or
To the same effect is Johnson v. Farwell
(1831) 370, 375-376, 7 Me. 22 6Am.Dec.203.
1 would reverse and remand for a reas-
sessment of consistent with this
opinion light and in the of the evidence now
of record in the cause. HOPPING,
Frank Es- L. Executor *7 Deceased, Hopping,
tate of Kathleen C. (Plaintiff Below), Appellant WOOD, Appellee
Patricia G. (Defendant Below).
No. 15A01-8711-CV-00278. Indiana, Appeals
Court of
First District.
Aug.
Rehearing Denied Oct.