By: Scott Fisher
With the current construction activity in high gear, this author has been contacted several times in regard to runoff that has caused damage to neighboring properties. Invariably, the situation centers around a construction project (whether commercial or residential) which has altered the pre-existing shape of a parcel of property. Such alterations often include raising the elevation of the property to conform to code or for aesthetic design purposes. Whether during construction or after construction is completed, the adjoining landowner complains of runoff that damages the adjoining landowner’s property. This damage could include something as simple as erosion or as severe as damage to hardscape and structures through undercutting and subsidence. Also invariably, the adjacent “damaged” landowner believes it has a claim against its neighbor for trespass, negligence or a myriad of other creative causes of action.
The “damaged” landowner may, in fact, have a claim but more often than not its neighbor will be able to invoke what has become known as the common enemy doctrine. In its most simplistic and pure form, the common enemy doctrine declares that surface water that does not flow in defined channels is a common enemy and that each landowner may deal with it in such a manner as best suits his own convenience. Such sanctioned dealings include walling the water in or out, diverting it or accelerating its flow by any means. However, a landowner cannot collect or concentrate surface water and cast it, in a body, upon his neighbor. Pflum v. Wayne Cnty. Bd. of Comm’rs, 892 N.E.2d 233, 237 (Ind. Ct. App. 2008). Under the doctrine, it is not unlawful for a landowner to accelerate or increase the flow of surface water by limiting or eliminating ground absorption or changing the grade of the land, even if it causes the water to stand in unusual quantities or in other directions than the water did before. The common enemy doctrine applies only to surface water and not to a natural watercourse. Surface water is defined as water generally originating from rain or melting snow which is diffused over the natural slope of the ground, not following a course or channel. Id.
Bringing us back to construction projects, the aggrieved landowner often complains of the erection of structures including their attendant downspouts and drainage systems and paving of parking areas. These improvements have necessarily caused more water to flow onto the adjoining property than previously had occurred. Such was the case in Argyelan v. Haviland, 435 N.E.2d 973 (Ind. 1982), where the Indiana Supreme Court looked at the common enemy doctrine as it related to an improvement to land which caused a change in the way runoff affected its neighboring property. In that case, the aggrieved landowner claimed the construction of a commercial building and paving for parking caused damages to her adjacent property. The Court agreed that may have been the case but that the common enemy doctrine prevented any recovery on the part of the aggrieved landowner. As long as the adjoining landowner was not channeling water onto its neighbor’s land and by allowing it to diffuse and flow naturally toward the neighbor, the common enemy doctrine protected the defendant. The Court recognized that although the common enemy doctrine may at time inflict hardships, it is equally hard on everyone and can benefit at times or burden at times.
Our Appellate Court reaffirmed the common enemy doctrine in N.G. Hatton Trust v. Young, 97 N.E.3d 282 (Ind. Ct. App. 2018). In Hatton Trust, the Youngs built a home on a lake lot in Whitley County adjacent to land owned by the Trust. In constructing the home, the Youngs built the home higher up the hillside from the Trust home and raised the elevation of the home approximately six feet higher than the existing ground. Chaos ensued during heavy rains, when water would travel from the Youngs’ property onto the Trust’s property and undermine and damage sidewalks and stairs on its way to the lake. This runoff also carried fill dirt including rocks, mud and sediment along the way and ultimately left it on the Trust property.
In affirming the trial court, the Appellate Court noted there was no evidence that the Youngs were collecting the surface water and casting it upon the Trust’s property. The Youngs’ construction only altered the flow of the surface water, an entirely permissible act under the common enemy doctrine. Even though the runoff ran a greater velocity than before due to the higher elevation, this too was permissible. The Trust also argued the presence and quantity of mud, rocks and sediment in the runoff pushed it outside what is permissible as “surface water” for purposes of the common enemy doctrine. On this issue, the Appellate Court noted that presence and quantity of the mud, rocks and sediment was a determination for the trial court. In layman’s terms, it is a question of degree which has to be presented either to the judge or a jury as the case may be. Since the judge determined at the trial court level that everything coming off the Youngs’ property was indeed “surface water,” the Appellate Court determined it could not reverse the trial court. In essence, the trial court determined the amount of mud, rock and sediment was not so severe as to take the runoff outside the parameters of the common enemy doctrine.
As is always the case, there are exceptions to the common enemy doctrine. For example, as discussed by the Indiana Court of Appeals in B&B, LLC v. Lake Erie Land Company, 943 N.E.2d 917 (Ind. Ct. App. 2011), the runoff must be surface water. In this case, a landowner who raised the water table and created a wetland that spilled onto the neighbor’s property could not invoke the common enemy doctrine because the source of the water was subterranean aquifers and not rain or snow melt. The Indiana Court of Appeals has also held that the improvements must be on the land of the owner seeking to invoke the doctrine. An owner who built a wall on a neighbor’s property that had an effect on water could not invoke the common enemy doctrine. Harlan Bakeries, Inc. v. Muncy, 835 N.E.2d 1018 (Ind. Ct. App. 2005).
While the doctrine seems harsh to the burdened landowner, a guiding precept of the law making it palatable is that it is as fair to one as it is to the another. Hatton Trust at 286. Additionally, the doctrine has worked satisfactorily in Indiana since its inception. There have been no changes in the forces that cause water to run down hill (i.e., gravity), thus the Court sees no reason to change a law that works, if imperfectly. Id. So until the forces of gravity cease to exist, the common enemy doctrine will govern whether and how we can deal with excess surface water.