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Monday, August 25, 2008

Ind. Decisions - Court of Appeals issues 2 today (and 3 NFP)

For publication opinions today (2):

In Lowell J. Pflum v. Wayne Co. Board of Commissioners, an 11-page opinion, Chief Judge Baker writes:

Appellant-plaintiff Lowell J. Pflum appeals the judgment in favor of appellee-defendant Wayne County Board of Commissioners (the Board), claiming that the evidence was insufficient to support the conclusion that the Board’s improvement project had not resulted in the discharge or casting of surface water upon Pflum’s lot in accordance with the common enemy doctrine. Finding that the trial court properly applied the common enemy doctrine in determining that Wayne County (the County) did not collect surface water and cast it on Pflum’s property, we affirm the judgment of the trial court. * * *

In addressing Pflum’s claim that the trial court erroneously entered judgment for the Board because it misapplied the provisions of the common enemy doctrine, we initially observe that this doctrine declares that surface water which 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. Argyelan v. Haviland, 435 N.E.2d 973, 975 (Ind. 1982). These sanctioned dealings include walling the water in or out, diverting it, or accelerating its flow by any means. However, a landowner may not collect or concentrate surface water and cast it, in a body, upon his neighbor. This point is further clarified as throwing or casting surface water on one’s neighbor “in unusual quantities so as to amplify the force at a given point or points.” However, it is not unlawful to accelerate or increase the flow of surface water by limiting or eliminating ground absorption or changing the grade of the land. Id. And “it is one thing to grade a highway and cast off artificial water as a consequence of . . . grading, and quite another thing to change the natural flow, unite artificial channels, increase the volume of water, and cause it to flow upon private property in an increased volume.” Patoka Twp. v. Hopkins, 30 N.E. 896, 897 (Ind. 1892). * * *

For these reasons, the trial court properly determined that the Board was not subject to liability under the common enemy doctrine. The judgment of the trial court is affirmed.

In David L. Barlemay v. Nancy Witt f/k/a Nancy Barlemay , a 20-page opinion, Chief Judge Baker writes:
Appellant-respondent David L. Bartlemay appeals the trial court’s order finding him in contempt of court for allegedly violating previous orders stemming from the post-dissolution proceedings between David and appellee-petitioner Nancy Witt, f/k/a Nancy Bartlemay. Specifically, David argues that the trial court improperly used its civil contempt power to “order illegal and punitive remedies and by determining that findings of the court, entered six years before by a different judge, were incorrect.” We reverse and remand to the trial court with instructions to recalculate the attorney fee award.
NFP civil opinions today (0):

NFP criminal opinions today (3):

Curtis Palmer v. State of Indiana (NFP)

Thomas J. Stamey v. State of Indiana (NFP)

Willie Clark v. State of Indiana (NFP)

Posted by Marcia Oddi on August 25, 2008 12:21 PM
Posted to Ind. App.Ct. Decisions