*1 Eugene Inc., Company, G Gene B. Glick G & B. Corp. Development Corp. v. Marion Construction Ransburg. M. Edwin July August Rehearing 1-375A46. Filed 1975. denied [No. 1975. February 13, Transfer denied 1976.] *2 Wilkins, Bamberger Feibleman, Indianapolis, Gene E. & appellants. for Hurt, McNutt, Blue, Hurt Martinsville, E.
John & Stewart, Meyer, Gilliom, Irwin, L. Gilliom, Richard Fuller & Indianapolis, appellees. legal ap- history J. The factual and of this Lowdermilk, years. peal period over stretches back more than sixteen adjoining principal parties appeal to this The were and are County, in Marion landowners Indiana. The defendants- (hereinafter collectively “Glick”) appellants referred developed greater have portion own and immediately north, northeast, which is situated to the Ransburg property, northwest of the construction problems numerous residential subdivisions. The raised appeal are on the fact property based the Glick higher occupies topographically position than does immediately adjacent tracts.1 tract The of land individually by Ransburg. owned remaining portion Corp. is owned Marion Construction corporate result, all owns stock. As a Ransburg property directly lies path of the overland *3 for the area. watershed replaced existing fields,
As the Glick houses woods and engineers necessary found it to redirect of the natural flow fully develop By surface waters in order to the area. a series open of interconnected ditches sewers, and subterranean storm companies various Glick-eontrolled subcontractors and/or drainage system thereof established a ultimately vented properties. at the of the southeast corner Glick Unfortunately, this corner southeast was also the northeast corner of Ransburg property. early open
In 1959 it approxi- was discovered ditch mately deep long feet and three six hundred feet been had gouged Ransburg’s along into land northeast line. begun, however, This only ditch was after a fence on Ransburg cut, property had been and several young hundred destroyed. lengthened trees This ditch was later ulti- to an length of feet and mate 525 was connected to the north branch map opinion. at 1. See included the end of this
75 began tile a broken field Creek, which Run Pleasant of Ransburg’s property. line or east feet inside the some 50 ditch, digging of the ordered the Although it is unclear who performed subcon- a the work was there is evidence that company. tractor of Glick-controlled digging, Ransburg discovered shortly after
Sometime then Apparently, Glick Glick. protest was issued a letter of prop- Ransburg on ditch sought refill the permission to fifty acquired strip foot only of land erty, after he had but along the northeast line south north and ran wide which Ransburg property. original complaint in this 22, 1959, the September On seeking injunctive Ransburg relief and filed, action was year, informed the same damages. In October rights, that, a waiver of by letter without specifications. Glick then under certain filled could be ditch newly acquired dig strip on the a ditch proceeded therefrom to excavated fill ditch the soil use However, the work Ransburg’s when was property. com- only feet of the was ditch the northern pleted new was connected the southernmost filled, ditch Ransburg ditch. feet of the filing motions of numerous other matters After 1965, adding parties request- complaint was amended damages. year ing Also in additional cause was Morgan Circuit Court. to the venued significance other matters should be noted at
Several completed construction 1-465 point. In 1960s immediately properties involved. east of connection highway, Ransburg the construction allowed a (borrow) excavate soil an amount sufficient contractor pond portion southern acre a seven to create *4 Ransburg evidence most The Ransburg favorable to property. excavation, compensa- this to both receive permitted he is that pond in to create order to alleviate the borrow for tion property. flooding on his conditions
Finally, 1966, in in connection the removal of borrow, portion the southernmost of Pleasant Creek Run was moved an artificial channel which ran south north and (for part) along the most the east line Ransburg ultimately tract. This new channel connected with dug by Glick, Ransburg ditch, which entered the tract Ransburg of the north line of the property. 300 feet south some brought finally to trial matter was The June proceedings, during present the course of appellants original substituted for the defendants were below. The trial Company, and Marion court found Construction $10,000.00 $50,000.00 respec- and awarded injunctions tively. were No issued.
I. arguments obligations set first concern the of each handling party right problems, surface water party existing waterway. each make use argument regard initial is that an ordinance adopted by Metropolitan Plan Commission in re- quires Ransburg certify Commission that planned drainage development system adequate includes a handle developed storm water run-off upper watershed areas. Thus, Glick contends that developed if had his property first, he drainage provide would still have had to adequate to handle upper run-off should the watershed be developed. Therefore, later it is Glick’s he contention that cannot be held liable constructing for the cost system Ransburg, which build, should he have chosen to supply would have had to even if the were watershed completely ^developed. argument, Ransburg response to this deny
In does not comply have to with the he would However, ordinance. Rans- burg complied that had contends with the same ordi- compliance nance, his the cost of would be much less. argues addition, Ransburg ordinance does develop must Thus, that one state land. it is contended
77 developed all, at not be as the area need inasmuch a provide compel to rely on to the statute cannot drainage drainage system to handle sufficient which is areas. the Glick Metropoli- by question approved ordinance in
The 30, 1958, adopted September on tan Plan Commission 3,1958.2 County November the Marion Council dispute follows: particular in is as section Drainage Open Ditch “d. topo- drainage system a plan proposed grade base, spot flow graphic lines, intersectional elevations and pipes, culverts, all elevation and details bridge drains, inlets, headwalls drop necessary installa- and similar or related
tions. (4) certification tions age improvements designed area use registered permitted under the shall applicable watershed to have safely land [*] been a to area surveyor registered professional [*] handle said area at developed [*] when structures are existing zoning classifica- that all surface such for maximum upper watershed proposed drain- drainage from time of said adequately engineer certification.” considering parties, upon the this ordinance
In the effect of as are when apply same rules of construction used we Greensburgh Zorger City (1877), v. The statute is involved. Indianapolis City Woerner, 242 1; etc. v. Ind. 60 duty regard in this is well 34. Our Ind. 177 N.E.2d Bynum v. LaPorte ex in the case of State rel. summarized Superior No. 1 259 Ind. N.E.2d Court 355, 356: construing statutes, dispute is will “. . . None meaning give duty plain requires effect to the and manifest our of language This no of au- citation used. legisla-
thority.
ambiguity, we must search for
cases of
possible,
than one construction
intent.
If more
tive
concerning
power
question
Commis-
is no
raised
2. There
See,
1971, 18-7-2-20,
promulgate
Ann.
IC
Ind.
such an ordinance.
sion to
Supp. 1974).
(Burns
53-920
§
Stat.
consequences
court
struction.
particular
consider the
(Cases
of a
con
omitted.)
at
cited
A consideration of
may properly
tendant evils
influence the construction
cases;
(cases
omitted),
such
cited
and the
will
court
give
practical application
endeavor to
the statute a
way
oppose prejudice
public
construe it in such
(Cases
omitted).
interest.
cited
These
are
considerations
legislative
having
to enable us to determine the
intent. Once
however,
intent,
ambiguity
determined
and
disappears,
such
liberty
adopt
are no
more
a construction that
give
will not
there
withstanding
we
effect to such intent
than
had
we would be
ambiguity
This,
been no
in the first
instance.
not
*6
approve
may
purpose
that we
not
its
or
perceive
apparently
undesirable side effects
envi
not
passage.”
also,
sioned at the time of
See
Woods v. State
(1957),
423,
752;
236 Ind.
140 N.E.2d
Roth v. Local Union
369,
No.
Retail Clerks
(1939),
363,
Union
216 Ind.
1460 of
The case law of this state sets principles out well-defined govern options obligations which adjacent and land regard owners with to the of surface waters. Smith et ux. (1962), v. App. 430, 180 Atkinson Ind. 133 N.E.2d 542, adopted the court following language I.L.E., from 29 Water, 53:§ upper higher “While owner of may or land make such required by drains husbandry on his land good as are improvement and the of the surface of the ground, channels without may discharged and such as into natural inflicting unnecessary injury on adjacent right owner, upper landowner to of discharge surface right water on the lower is a land flowage only ways in the quantities, natural and in natural may he and not alter change the natural conditions so as to water,
the course of the or concentrate it particular at point, by or artificial means increase its Accord- volume. ingly, upper may not, landowner by channel, sewer,
79 drain, water ditch, or concentrate surface collect or either proprietor, cast it the lands lower on incurring liability intentionally negligently, or without thereby.” caused Hap- language from Weddell v. helpful find the further We 315, (1890), 24 368: ner 124 Ind. N.E. improve may it is true the owner of “While by by changing of to erection it either surface or buildings cause thereon, as structures so or other accumulating rains water thereon falling in unusual the surface to stand snows on land, adjacent pass quantities into other or or over they greater quantities in other than same were accustomed land, or directions flow, his depress or elevate water, adjudged changing thus flow of surface v. v. Taylor Fickas, 64 the cases Ind. Weis supra, City it is also true that he Madison, can surface water and ditches concentrate means of drains and by carry it it never flowed before means where discharge damage, with to a lower land-owner to damage.” payment becoming liable for the of such out v. Voshloe also, 134; Weideroder See, Templeton Ind. Tiche 79; Witherspoon (1927), App.
nor v.
Ind.
v.
5;
Bejes
V. Mace
(1916), 184
Ind.
111 N.E.
Gumz
App. 55,
163 Ind.
The above Glick could quantities properly collect normal of water which fell on his lands direct them and on his channels property, direct he could not the concentrated waters point existed, or to a where no natural watercourse flowage damage Rans- so as to the lower increase the to cause burg property. mind,
With this in we now turn to consideration ordinance. presents The above section an immediate phrase safely drainage “. . . handle surface .. (our any emphasis). the entire While sentence is clear that plat must be able to “handle” control water “from” area, the section is silent as to is done with what to be the water after it any plat, i.e., is “handled” on one what discharge any given about of the water area. Without from more, certainly departure this would be a common from the law, developer simply since each could collect control they pass the waters through, discharge as then them liability. lower land without
DECISION opinion It is (d) (1) our 2.06 supra, does § developer not relieve a traditionally from the duties imposed on an upper watershed landowner. reaching given this decision we feel we have the word ordinary meaning.3 “handle” its To handle or “deal with” drainage surface including should be construed disposition any interpretation water sup- collected. This ported by regulations platting Chapter themselves. one general sets out the purposes objectives regulations as “. . county-wide . unified planning zoning . . .” We feel objective such an by requiring is furthered developer each refrain increasing burden on land- lower owners. each properly If land, deals with water then the natural flow of waters can be maintained without injury parties to involved. 2.02(8)
Further, (G), requiring section map” an “area supplied any application, to be map states that such shall include: See, Collegiate Dictionary 3. Webster’s Seventh New where one definition of the word with, on, “handle” is “. . to. deal act dispose .
or of. . .” drainage of surface water diagram proposed course “A ditch, plat a court to water leaves point where from the sewer, by flow to shown public be storm natural stream or (Our emphasis.) descriptive notes.” lines, arrows and topograph- requires a 2.02(4) (c), Similarly, which section that such application, states map ical be submitted map include: shall Datum or U.S. and Geodetic on U.S. Coast “Contours based Geological Survey foot at marks one Datum bench showing clearly lines and intervals, by flow arrows vertical water, natural of surface both pattern through proposed to the area proposed, within and marks bench platted, be elevation of said location (Our emphasis.) thereon.” shown the Plan con- Commission’s requirements demonstrate
These disposition water, its effect proposed for cern is con- section 2.06 adjacent This construction of owners. and, regulation, scope the entire the broad sistent with interpretation feel possible, we although one more than oppose public interest.” prejudice “. . . [s] construction supra. Bynum, rel. ex State appellee Ransburg,
Taking most favorable the facts discussion, light conclude that Glick we did above passed fell the water which on or into his collect property, and direct means artificial channels it discharged point where was in a concen- Ransburg’s flowage on land. This water not dis- trated was charged watercourse, least not into until the ditch was dug tract. While do not that Glick find any quantity discharge, for increase in is liable or discharge per improper, se is the fact we do find that liability any damage result there is which from the discharge upon existing of waters concentrated into (cid:127) subject previously discharge. to such watercourses
II. argument major second Glick is that he entitled draining use of Pleasant Run to make Creek his lands. prior fact that de- emphasizes the immutable *9 acreage him, by entire involved onto velopment the drained beginning reaching Ransburg’s property, eventually the Glick-Ransburg Creek, the Run some 525 feet south of Pleasant moved that since the water maintains property line. Glick land, development upper of the the the creek before toward simply liability same water is now no because the there can be place by means. the artificial moved to same argument, that in 1966 points Glick out further As a creek con- Ransburg the altered and had the channel of Ransburg dug by the entered the ditch Glick which nected to Ransburg that cannot that since time Glick maintains land. flowing upper in a from the area is not that the water claim natural watercourse. arguments, Ransburg response contends that to these flowage right only, natural
any the is one of and to use creek moving merely attempt, creek that the of the bed was borrow, the removal the deal with connection drainage system. created “burden”
DECISION dispute may little landowners use There can be make waterways may Indeed, their natural drain lands. one channels one’s ditches and own more construct land to effectively carry existing water to an surface watercourse. appeal Also, controversy in this there exists no that water always properties has the Glick Pleasant drained toward Run Creek. every right
Thus, had water it is clear to allow take its natural course onto the from his existing eventually into drain creek. The land and however, transported, water is collected arises, when the directly the source of the creek. by ditches, in the evidence course of natural flow There Creek, land Pleasant Run much of toward ground. Further, into is, is absorbed water there the rate of run-off above, increase a marked noted There- placed thereon. are plat hard when surfaces of land (i.e., may the same fore, though quantity of water Ransburg land), if onto area is drained same discharge existing water- into an rate of means of ditches the liability may upon landowner so increased, fall is course Templeton, discharging principle stated in This is the water. supra, as follows: upper may not construct drains field “. . . owner to the lower so as form new channels excavations chan- field, the water several can he collect discharge nor field as to it on the lower so neis right upon increase wash same. on his own to make drains owner of restricted field husbandry required by good as are to such ground, and improvement of the surface of channels, discharged without natural *10 as be into inflict- ing palpable unnecessary injury the lower on and field.” (Our emphasis.) naturally the lands drained onto
That the Glick give right on the construct channels land does not Glick Ransburg’s discharge water his in order land and on in such volume to cause or near natural watercourse damage to owner. the lower landowner, upper are no decision that aware of allows an
We permission consideration, without or route of drain all his
age by digging the another’s land onto ditches on flowage. may other’s land the One accommodate damage use not make a natural if is watercourse by routing ato lower landowner reason done of the flowage creek, by water or reason increased Templeton, supra; the creek water arrives. Cleve after App. land, 51 Ind. etc. R. Co. v. Griswold Walley Wiley App. 1030; 171, 104 v. 56 Ind. 97 N.E. N.E. 318. any that landowner conclude while therefore use
We property, existing drain under certain watercourse to bar, there no conditions, in the case at such watercourse implemented property, the means to make the Glick improper. It follows use of Pleasant Run Creek were thus damage digging that caused of the ditches and channeling through of the these to the creek should water wrongdoer. compensated by
III. Having that Glick did in fact decided channel onto water land, directly into the creek which traversed property, arguments the latter’s must now consider damages (1) that such (2) conduct arbitrary, are: unsupported evidence, excessive. argues development first that of his land in no
way Ransburg’s impeded development property. Much placed emphasis testimony is Ransburg’s expert witness, who testified on cross-examination as follows: No,
“A. I don’t think upstream whether or not the developed watershed any area undeveloped or would make drainage difference on the solution to the of this tract. Q. your In testimony other words is that the solution you’ve recommended would be the same whether or not upstream developed undeveloped? areas were particular situation, yes, given A. In this giving the the — potential upstream development area.” testimony It is asserted that this conclusively shows any development areas could cause Ransburg property. no to the vein, that, same given Glick contends ordi- above *11 nance, any preventing evidence on costs of flooding are necessary comply ordinance, costs with said not costs which arise a Thus, argues as result his of conduct. Glick that even Ransburg developed if had before 1959 the costs have would been the same.
Further, argues Glick that there was no evidence of re- a land; in duction value of the appraisals that as to the present of land improperly value were Ransburg based on and changed zoning; conditions obtaining that different Ransburg a calculation have made land near that “impossible”; and damages to Glick attributable are original trespass acts other damages for both arbitrary and excessive. wholly on evidence which arguments are based
The above findings fact. incorporate final in his judge the trial did urges follows: be summarized as can evidence Glick which have lands During that the there no evidence (1) trial was flooded since 1957. Ransburg value
(2) There was no evidence itas is now zoned. land, taking given, even (3) Even values appreci- pond, has is covered the seven acre which ated in value. Ransburg
(4) 65 acres has allowed additional Since 1959 into the creek. to drain existing changed
(5) There was evidence that Road 1-465 drainage systems drainage. and amounts of the creek In 1966 moved channel of line, adjacent the east 1-465. asserts that all of the above facts demonstrate
impropriety of the awarded. Ransburg argues compliance reply Glick was not general ordinance; if the above with §2.06 complied water, proper discharge planning Glick had for complying the cost less for with ordinance would be lower owners. stop
Further, Ransburg development contends Glick’s did support property, cites development of the lower Authority Housing the effect that the Federal letter from a developing applications no accepted plan until mortgage insurance would be to deal (There problem was submitted. was evidence that with dealings past.) extensive F.H.A. in the had *12 86 argues Ransburg above,
In addition to the that he also develop lands, provisions cannot be forced to thus the compel requirements the ordinance cannot him to submit the regulation. Alternatively, Ransburg of the contends that even regardless develop, ordinance, if he does the dealing drainage problem cost of the same. would be the Second, Ransburg also contends that measure damages work, is the cost of remedial rather than loss of Therefore, the value of the land. since there evidence was increasing existing that performing size of pond other approximately $300,000.00, work would cost argues $60,000.00 clearly award of proper. was [a total] deciding
In damages, First, issue our task is twofold. we must determine there if was sufficient evidence to allow the trial court compensable to determine the existence of injury. Second, injury shown, if there was we must determine if the amounts were awarded excessive. addressing the first question, we are mindful that
party fairly compensated should any damage done. However, damages guesswork cannot be based on specula- tion. Moore v. Waitt App. 1, 157 Ind. 298 N.E.2d 456; Northern Indiana Supply Steel Co. v. Chrisman App. 27, 139 Ind. Looking only N.E.2d 668. evi- dence Ransburg, most favorable we must decide whether there sufficient evidence acts of Glick resulted compensable injury. in opinion
It is our that there was sufficient show evidence to acts damage Glick resulted to the property. light emphasize that,
We wish of our construction of involved, the ordinance we do not feel failure of com- pliance per with the amounts liability. ordinance se to plat plans approved by Commission, were and Glick cannot requirements post-development be held to the interpre- of our regulations.4 applicable tation of the Thus, whether or not intend, however, 4. We do that our construction of the subdivision regulation prospective application. have immediate end of regulation is not complied with inquiry. (some witnesses sharp
Though conflict was in evidence estab- could themselves), find the court contradicting even following: by reference to the existence of lish subject testimony land was that the (1) Expert Franklin’s the Glick flooding; elimination of *13 coping with plans for problem; lessen the that would there been drainage had different would be 14 development; additional that an upstream and no necessary pond to control retention were of acres situation. inside beginning of Pleasant Run was
(2) that the Evidence ditches Ransburg property, and that no natural led to the creek. existed which system
(3) Admission Glick that directly Rans- into the connected ditch subdivisions burg’s property. higher Testimony in de- that the rate of run-off was
(4) areas, veloped water at increased rate was said directly the lower onto land. channeled although the (5) that same amount of water Evidence involved, it slower moved toward creek a much be development. prior to rate Testimony (6) that Glick controlled all various busi- of his
nesses, and that sub-contractor one of these original dug Ransburg’s ditch on land. businesses warning flooding problems letter The F.H.A. due development. upstream question given deciding have atten this we considerable
In has facts that since tion flooded to the flooding-, past however, is The evidence of not the crucial 1957. damage subjecting the lower consists of consideration. flowage rate increased so that an work must development performed of the before downstream area may continue.
88
Having damage done, fact we must decided was monetary properly now determine whether award was computed in amount. reaching questions again, must,
In a conclusion on these take Ransburg, the evidence most favorable must find uphold computation there were facts to Snyder
amount.
Co.,
Bond v.
Construction
Inc.
(1968),
App. 325,
Generally,
Ind.
As noted Glick maintains alternatively that there land, nowas loss of value any to the and that remedial action by Ransburg taken was not caused Thus, conduct of Glick. all damages, Glick would avoid they whether be based depreciation or cost of remedial implicit work. emphasis The arguments, however, of Glick’s is on damages avoidance of based on the latter standard. This is so because Glick main- land, it, tains that the all of has increased in value since the Thus, Glick activities. damages since there here, can be no arguing concentrates on work done the charged land should not be to him. although Ransburg, apparently willing accept to the award damages measure of stands,5 the it maintains given work necessary Thus, the remedial work. the cost of is totalling contends the $300,000, estimates about scope reason within the of $60,000 well of was award the evidence. extensively considers case, by Ransburg,
The which noted Co., Advertising Inc. v. problem is Outdoor this General Corp. 247, Realty App. 218 N.E.2d Ind. LaSalle building appellant leased roof In case had 141. this large sign placed appellee The in contract thereon. sued building. discussing damage to the In tort for done damages the that: court stated issue will control concerned of law “We are with rules which damages to to awarded measure be appellee wrong i.e., appellant, of the caused amount the actionable necessary damage compensate sus- him for the to authorities, reviewing tained. we do In the Indiana general agree for of the rule appellant’s contention that measuring damage market real estate value property injury less market before value injury. . property after the . .” quoted City discussing cases, prior from The court 487, Wayne Hamilton, Fort et al. 132 Ind. v. 324, 32 N.E. as follows: “ permanent injury complained ‘The of in case shrubs, soil were and destructive. shade trees and constructed, street and sidewalk removed therefrom and a impossible In property practically so that to restore the it was rights this, its former condition. addition thorough- public public continuance its as a demanded brings the the rule laid fare. This case down within Gooday, Anderson, cited in etc. Jones v. R.R. Co. Kernodle 54 8 M & W. 314, fixing the measure of v. Ind. land, rather than the amount value original required to restore to its con- which would ”6 dition.’ concluding injury that most results After which standard, tortious could the same conduct be held court held that: LaSalle *15 argued inadequate. not has award was 5. 6. The ip- case, supra, may particular import, qs Anderson of be
vqlvqd tQ egtatq by real reason of a injury trespass, 90 stating injury have “What the courts been is if permanent,
to real estate is then of measure damages market injury is the before the market value less injury. after the inter- value The cases have not preted thority we know meaning ‘permanent.’ However, of the au- on injury Anderson, supra, permanent, if of not is improper. ‘before after’ test See that the is Pipe also Indiana Line v. Christensen 188 Co. Ind. 400, case, supra, N.E. 123 789. The Anderson not does speak in clarity much exact measure to used be injury. non-permanent way case of a But 493, Wayne, supra, Fort p. speaks dictum in the court Gooday, supra, rule laid down in Jones v. cited Anderson, supra, interprets it as ‘the amount which ” required original would restore it to its condition.’ See, also, Glesing Smith App. v. Ind. 248 N.E.2d 366. agreement reasoning
areWe with the set imme- forth diately However, above. we must now decide whether injury in non-permanent. the case at permanent bar
Clearly, damage done to the not land is type City supra. noted in Wayne, Fort The land However, damages remains useable. it is also true that permanent are in the sense that water does will continue through system flow of Glick ditches onto the Rans- burg land.
DECISION After options some us,7 consideration of the before we con- clude injury that the is, given the real estate past
present case, permanent. facts this reach We this conclusion for several reasons. The nature of wrongs digging consist of the of ditches and the soil, removal of and the par concentration of at a Ransburg’s point ticular land. All of these injuries, we feel, can be corrected. holding
By this we have directed the “before-after” only improper, test but particular See, generally, Damages, 7. 25 C.J.S. 85: 22 Am. Jur. 2d §§ Dam- §§131-135, ages, *16 of what note However, must take careful
case. we Ransburg. The compensate adequately required is non- of court, General, supra,, that in cases held in applicable. We restoration is injury, permanent the cost of damage therefore, extent of the before must, determine the amount. proper in if the was determine award we can carefully that Rans- Throughout opinion, we have noted was burg’s from Glick’s complaint is that the water Thus, flowage” points. brought by to various “concentrated themselves, is that Rans- injury, ditches from the aside rate burg’s the increased or of land will flood because much was Pleasant This funneled into Run Creek. water of conclude, Ransburg. for witnesses We various testified general (1) the therefore, must “restored” is be what Ransburg’s by Glick’s topography land which was disturbed of Run activities, Pleasant of water into volume Creek. case with the facts of this feel this result is consonant
We damage compensation done. principle of full development was a expert evidence was that “subject Ransburg’s land, the land was “burden” on flooding.” Further, Ransburg con- that he testified had not There- develop because of Glick’s conduct. tinued aggravated fore, Glick is reme- if the created develop plans. he died, free to his land as should be is whether the amount of final consideration Our insight noted, proper. As have as to the foundation is we no fatal, $60,000 judge itself is since a for the award. This in supra. Smith, respect. in this is vested with wide discretion damages, considering amount note Further, of regard, conflicting testimony although in this there was weigh judge duty evidence, nor credi our is not Boles, in Allison v. bility As stated of witnesses. page supra, at 597: state that where established in this is well “The rule is in recovery dispute of
the reasonable amount under evidence, the amount awarded cannot be considered scope excessive it within of evidence if is Company before court. First Bank & Trust Bend, Spiro South Executor Estate v. Tellson 478, App. 484, 124 Ind. 496.” N.E.2d judging Further, $60,000, require the award of we do not any particular degree certainty, Myers mathematical v. 34, App. 577,
Maris 164 Ind. 326 N.E.2d proof and where there doubt to the exact damages, uncertainty such must resolved against wrongdoer. City Wayne Capehart- Fort v. Corp. (1957), Farnsworth App. 412, 127 Ind. 142 N.E. 2d 442. *17 find supported by
We the award of The record. evidence expenditure discloses that an $304,000 would remedy Glick; created and that such would also by Ransburg. benefit the judge, Thus, owned the trial by giving Glick benefit, credit could have reached $60,000 award of divided the same between Marion Corporation. Construction ample
Given the evidence on the nature remedial of the work, therefor, the cost $60,000 conclude the award of scope was well within the of the evidence. judgment hereby trial court affirmed.
Robertson,
Hoffman,
C.J. and
J. concur.
Reported at
On briefly Lowdermilk, necessary J. We deem it to comment rehearing. petition appellant for petition, our his Glick contends that construction ordinance involved is incorrect the lower landowner because worry flowage won’t “ever about increased have from upstream developer maximum use because each will have drainage care of problems take his own surface water within just the confines of his own land. This is not what the Ordi- says.” (Glick’s emphasis.) nance holding. misinterprets upper our We that did hold responsible drainage
landowners are for the of lower lands. 58-AO-13, we held! (d) (1) (4) What Ordinance 2.06 § permit upper did not landowner develop his land disregard discharge complete for the of water from his land. unscrupulous ordinance is not a for shield and unmind- development properties. ful of urban We reiterate that each duty landowner’s under the interpreted ordinance develop is to plans provide proper “handling]” drainage water —and includes discharge plans for the developed of water from the plat.
The lower landowner must still deal with the water while property on his passes as it his property. It important to note that the lower development landowner’s his own will increase the problems for yet the landowner him. higher below To allow each landowner simply increase the pass it on so that a few the lower end must bear the ultimate burden cannot purpose ordinance here involved. questions essentially
Other raised ask us to reconsider the judgment. support of our evidence The evidence con- regard original opinion our sidered was, course, appellee Ransburg. that most favorable to That Glick asserts testimony support position could cannot alter *19 up- probative value other evidence of where our conclusions Ransburg’s holds contentions. rehearing denied. for
Petition
Reported
Note. — v. State of Indiana.
Marvin L. Orms Rehearing September July 15, denied Filed 1975. 2-974A233. [No. denied 1975.Transfer December 1975.] Knight, Indianapolis, appellant. C. Robert for Harry Sendak, Attorney General, Watson, Theodore L. John III, Deputy Attorney General, appellee. for appeal Orms’ L. a conviction
Per Curiam Marvin for robbery1 presents issues review. two sustain conviction? evidence sufficient 1. Is the overruling trial err in court Orms’ Motion 2. Did Continuance? (Burns 1956). 1971, 35-13-4-6, Ann. Stat. 10-4101 § 1. Ind. 1C