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Thursday, July 02, 2009
Ind. Decisions - Court of Appeals issues 1 today (and 8 NFP)
For publication opinions today (1):
In David and Connie Long v. IVC Industrial Coatings Inc., et al. , a 17-page opinion, Judge Brown writes:
The Longs argue that the trial court erred by granting summary judgment to IVC/Contractors. Specifically, the Longs argue that the trial court erred by finding that the common enemy doctrine applies because: (A) the mechanism that cast mud upon the Longs’ property was surface water and not a natural watercourse; and (B) the water contained mud, silt, and sediment. * * * Under the common enemy doctrine of water diversion, it is not unlawful for a landowner to improve his land in such a way as to accelerate or increase the flow of surface water by limiting or eliminating ground absorption or changing the grade of the land even where his land is so situated to the land of an adjoining landowner that the improvement will cause water either to stand in unusual quantities on the adjacent land or to pass into or over the adjacent land in greater quantities or in other directions than the waters were accustomed to flow. * * *NFP civil opinions today (1):If the water here is characterized as surface water, then the common enemy rule may apply to preclude the Longs’ claims for damages caused by rainwater runoff from the IVC parcel. On the other hand, if the water here is a natural watercourse, then the common enemy doctrine is not applicable. [cites omitted] * * *
Construing the facts and reasonable inferences drawn from the facts in the Longs’ favor, we cannot say that a jury could not determine that the discharge here, with its large content of mud, silt, and sedimentary material, ceased to be mere surface water. From the designated facts, a jury could conclude: that a large mound of surplus dirt was left on the IVC property; that for approximately one year erosion occurred which resulted in extensive amounts of mud, silt, and sedimentary material draining to a collection point, through ditches, culverts, and ravines and into the Longs’ two ponds; that IVC/Contractors took no or few steps to prevent the flow of mud, silt, or sedimentary material with water as evidenced by its repeated violations of “Rule 5;” and that a very large flow of mud or sedimentary material was deposited into the Longs’ ponds causing one of the ponds to fill approximately ten feet at its lowest elevation and the other pond to fill approximately seven feet at its lowest elevation. * * * Therefore, summary judgment on this issue is not appropriate.
For the foregoing reasons, we reverse the trial court’s grant of summary judgment to IVC/Contractors and remand for proceedings consistent with this opinion. Reversed and remanded.[5]
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[5] The Longs also argue that the trial court erred in granting summary judgment to IVC/Contractors on the basis that the Longs are non-riparian owners. However, because we reverse the trial court’s grant of summary judgment on other grounds, we need not address whether the Longs are non-riparian owners. Moreover, we note that resolution of this issue may be affected by the fact-finder’s determination of whether the water containing mud, silt, and sedimentary material at issue in this case constituted mere surface water.
Randy McGee v. Michael Osburn (NFP)
NFP criminal opinions today (7):
Brandon Cravens v. State of Indiana (NFP)
Virginia Cheesman v. State of Indiana (NFP)
Michael T. Freckman v. State of Indiana (NFP)
Lonnie White v. State of Indiana (NFP)
Chad Pemberton v. State of Indiana (NFP)
Jose Jenkins v. State of Indiana (NFP)
Michael L. Rutledge v. State of Indiana (NFP)
Posted by Marcia Oddi on July 2, 2009 01:59 PM
Posted to Ind. App.Ct. Decisions