                                                                  FILED
                                                             Mar 22 2018, 5:47 am

                                                                  CLERK
                                                              Indiana Supreme Court
                                                                 Court of Appeals
                                                                   and Tax Court




ATTORNEYS FOR APPELLANT                                   ATTORNEY FOR APPELLEES
Stephen R. Snyder                                         Zachary J. Stock
Randall L. Morgan                                         Zachary J. Stock,
Snyder Morgan Federoff & Kuchmay LLP                      Attorney at Law, P.C.
Syracuse, Indiana                                         Indianapolis, Indiana



                                            IN THE
    COURT OF APPEALS OF INDIANA

N.G. Hatton Trust,                                        March 22, 2018
Appellant-Plaintiff,                                      Court of Appeals Case No. 92A03-
                                                          1708-PL-1818
        v.                                                Appeal from the Whitley Superior
                                                          Court
Robert D. Young and Ellen M.                              The Honorable J. Brad Voelz,
Young,                                                    Judge Pro Tempore
Appellees-Defendants.                                     Trial Court Cause No. 92D01-
                                                          1110-PL-262




Bradford, Judge.




Court of Appeals of Indiana | Opinion 92A03-1708-PL-1818| March 22, 2018              Page 1 of 10
                                                 Case Summary
[1]   This case involves a dispute between owners of adjoining lakefront lots on

      Shriner Lake in Whitley County, Indiana. Appellant-Plaintiff the N.G. Hatton

      Trust (“the Trust”)1 appeals from the trial court’s order concluding that

      Appellees-Defendants Robert D. Young and Ellen M. Young (“the Youngs”)

      owed no duty to the Trust pursuant to the common enemy doctrine and the

      county’s zoning ordinance. Specifically, the Trust claims that the trial court

      improperly found that the water diverted from the Youngs’ property was

      surface water for purposes of the common enemy doctrine, and that the

      county’s zoning ordinance did not create a private right of action based on the

      Youngs alleged violations and resulting harm to the Trust’s property. Because

      we disagree, we affirm.



                                 Facts and Procedural History
[2]   The Trust has owned property next-door to the Youngs’ property since 1999.

      The Youngs applied for and received a permit to build a new home on their lot

      in late 2006. (Tr. Vol. I pp. 46, 165). The new home is further up the hill from

      the old Young residence and adjacent to the Hatton home. (App. p. 10).

      During the course of the construction, the Youngs also raised their ground with




      1
          The property at issue is held in trust for the benefit of the Hatton family.


      Court of Appeals of Indiana | Opinion 92A03-1708-PL-1818| March 22, 2018           Page 2 of 10
      fill between four and six feet. (App. p. 10). Construction was completed in

      July of 2007. (Tr. Vol. I p. 47)


[3]   During and after heavy rains, since the construction of the Youngs’ new home,

      water flows across their driveway before accumulating in a rock bed. The water

      then crosses the property line, causing damage to the Trust’s concrete sidewalk

      and stairs as it travels downhill to the lake. (App. p. 11). In addition, fill,

      including rocks, mud, and sediment, from the Young’s construction washed

      onto the Trust’s property. (Tr. pp. 29-30, 36, 109, 182)


[4]   The Trust filed a negligence complaint against the Youngs on October 24, 2011.

      (App. Vol. II p. 2, 19–21). According to the Trust, the Youngs breached a duty

      to “not divert surface water in a narrow channel onto [the Trust]’s property”

      when they constructed the new home farther up the hill. (App. Vol. II pp. 19–

      20). In the alternative, the Trust claimed that the Youngs were negligent per se

      for their alleged failure to abide by certain sections of the Whitley County

      Zoning Ordinance (“the Ordinance”) in the construction of their new home.

      (App. Vol. II p. 20). The Youngs answered the complaint and denied that they

      negligently caused any damage to the home on the Trust property. (App. Vol.

      II pp. 3, 30–47). In a second amended answer, the Youngs raised the common

      enemy doctrine as an affirmative defense.


[5]   A bench trial was held on April 28, 2017, and the parties subsequently

      submitted proposed findings. On July 14, 2017, the trial court entered findings

      of fact and conclusions of law. The trial court found that the water flowing


      Court of Appeals of Indiana | Opinion 92A03-1708-PL-1818| March 22, 2018    Page 3 of 10
      from the Youngs’ property “wreaks havoc” on the Trust’s property. App. Vol.

      II, pp. 10–11. However, the trial court also found that the water only occurs

      after heavy rains, the Youngs were not “collecting, concentrating, and casting it

      in a body upon” the Trust’s property, and it was not “outside the definition of

      surface water.” App. Vol. II, p. 15. Thus, the trial concluded that “pursuant to

      the common enemy doctrine, [the Youngs] ha[d] no duty to have constructed

      their home in any manner different from what they have done.” App. Vol. II,

      p. 15. Having found no duty, the trial court rejected the Trust’s negligence

      claim. The trial court also rejected the argument that a violation of the

      Ordinance created a private right of action for negligence per se.



                                 Discussion and Decision
[6]   The trial court entered findings of fact and conclusions thereon sua sponte. Sua

      sponte findings only control issues that they cover, while a general standard

      applies to issues upon which there are no findings. Eisenhut v. Eisenhut, 994

      N.E.2d 274, 276 (Ind. Ct. App. 2013).


              We may affirm a general judgment with findings on any legal
              theory supported by the evidence. As for any findings that have
              been made, they will be set aside only if they are clearly
              erroneous. A finding is clearly erroneous if there are no facts in
              the record to support it, either directly or by inference.


      Id.




      Court of Appeals of Indiana | Opinion 92A03-1708-PL-1818| March 22, 2018     Page 4 of 10
[7]   The Trust contends that the trial court erred in concluding that the water

      running onto the Trust’s property was surface water pursuant to the common

      enemy doctrine, and that the Ordinance, standing alone, did not impose a duty

      on the Youngs as it relates to the Trust.


                                             I. Negligence
                                         A. Surface Water
[8]   In addressing the Trust’s claim that the trial court 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.” Pflum v. Wayne Cnty. Bd. Of Comm’rs, 892 N.E.2d 233, 237

      (Ind. Ct. App. 2008).


              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. (Internal cites and quotations omitted).


[9]   We also note that surface water has been defined as “water from falling rains or

      melting snow which is diffused over the surface of the ground which

      Court of Appeals of Indiana | Opinion 92A03-1708-PL-1818| March 22, 2018       Page 5 of 10
       temporarily flows upon or over the surface as the natural elevations and

       depressions of the land may guide it but which has no definite banks or

       channel.” Bulldog Battery Corp. v. Pica Inv., Inc., 736 N.E.2d 333, 339 (Ind. Ct.

       App. 2000). “It has also been determined that if the natural depressions and

       elevations of the land form a way for water but such way has no well defined

       banks or channel and carries no water except that which drains into it from

       adjoining lands, then such way is not a natural water course but a mere surface

       drain.” Pflum, 892 N.E.2d at 237.


[10]   The Trust maintains that the trial court erred in finding that the water flowing

       onto its property from the Youngs’ property was “surface water” pursuant to

       the common enemy doctrine. In this case, the Youngs raised the level of their

       ground several feet when they constructed a new home on their property. After

       the construction, the Trust complained of considerable surface water from the

       Youngs’ property, which caused damage to their lot. There is no evidence,

       however, that the Youngs were collecting the surface water and casting it onto

       the Trust’s property. The Youngs’ construction only altered the flow of the

       surface water, which is permissible under the common enemy doctrine. Thus,

       the trial court properly determined that the Youngs are relieved from potential

       liability regarding the surface water under the common enemy doctrine.


[11]   We recognize that the application of the common enemy doctrine in this case

       may appear harsh. However, the law is this area is well-settled:


               [A]lthough the Common Enemy Doctrine may, at times, inflict
               hardships, it is as fair to one as it is to another—a guiding precept

       Court of Appeals of Indiana | Opinion 92A03-1708-PL-1818| March 22, 2018    Page 6 of 10
               of the law. Additionally, it has worked satisfactorily in this State
               from the beginning, and it is well understood. There has been no
               change in the forces that cause water to run down hill since the
               problems caused thereby were first considered and resolved in
               this State; and there is no basis for assuming that a change in the
               rules for coping with such problems would, over-all, reduce their
               number or make them any more palatable.


               Although courts should not be slow to respond to changing
               conditions, changes in the established law are not warranted
               simply because it is imperfect.


       Argyelan v. Haviland, 435 N.E.2d 973, 977 (Ind. 1982).

                              B.       Mud, Rocks, and Sediment
[12]   The Trust also argues that the presence and quantity of mud, rocks, and

       sediment in the water pushes it outside the definition of “surface water” for

       purposes of the common enemy doctrine. The Youngs argue that this issue was

       not properly raised at the trial court level. We disagree. The evidence included

       witness testimony that fill, including mud, rocks, and sediment, washed from

       the Young’s property onto the Trust’s property. In addition, the Trust proposed

       the finding that “erosion was produced on the Young [property] which was

       detrimental to the [Trust property], an adjacent property.” App. Vol. II p. 51.


[13]   As discussed in the previous section, however, the common enemy doctrine

       only applies to “surface water.” We would also reiterate that “surface water”

       has been defined as water from “falling rains” or “melting snow.” Bulldog

       Battery Corp., 736 N.E.2d 333, 339 (Ind. Ct. App. 2000). Rock, mud, and

       sediment are not mentioned in that definition. “In our view, whether mud, silt,

       Court of Appeals of Indiana | Opinion 92A03-1708-PL-1818| March 22, 2018   Page 7 of 10
       or sediment contained in rainwater runoff is discharged in such quantities that

       the water ceases to be characterized as surface water is a question of fact.” Long

       v. INC Indus. Coatings, Inc., 908 N.E.2d 697, 706 (Ind. Ct. App. 2009); see also

       Wells v. State Hwy. Comm’n, 503 S.W.2d 689, 692-93 (Mo. 1973) (holding that

       the jury could find that the enormous content of mud (with water) discharged

       from the defendant’s property and deposited into the plaintiff’s lake over an

       extended period of time was not classified as a discharge of surface water).


[14]   The trial court was presented with all of the evidence, including photos of the

       mud, rock, and sediment on the Trust’s sidewalk, but nevertheless found that

       “water has damaged and continues to damage all things along its path.” App.

       p. 11. The trial court also specifically found that the water at issue was “surface

       water” pursuant to the common enemy doctrine. Consequently, the trial court

       did nor err when it found that the Youngs did not owe the Trust in regard to

       “the exercise of their water drainage rights.” App. p. 17.



                                      II. Negligence Per Se
[15]   The Trust contends that it has a private cause of action under the Ordinance

       and is therefore entitled to pursue its claim that the Youngs were negligent per se

       when they allegedly violated the Ordinance. Accordingly, the Trust contends

       that the trial court erred in concluding otherwise.


[16]   “[N]egligence per se is the unexcused or unjustified violation of a duty

       prescribed by statute.” Brown v. City of Valparaiso, 67 N.E.3d 652, 656 (Ind. Ct.


       Court of Appeals of Indiana | Opinion 92A03-1708-PL-1818| March 22, 2018   Page 8 of 10
       App. 2016). However, it should be noted that “not every statute creates an

       implied right of action, and a claim of negligence per se depends on a

       determination of legislative intent to make a defendant liable in tort.” Id. at

       660. Generally speaking, a private party may not “enforce rights under a

       statute designed to protect the public in general and which contains an

       enforcement provision.” Id. at 658.


[17]   The purpose of the Ordinance is described in Section 1.4:


               This Ordinance is intended to guide the growth and development
               of the County in accordance with the Whitley County
               Comprehensive Plan and for the following purpose.
                        A. To secure adequate light, air, and convenience of
                        access; and safety from fire, flood, and other dangers;
                        B. To promote the public health, safety, comfort,
                        convenience, morals and general welfare;
                        C. To plan for the future development of the County to the
                        end;
                                 1.That the community grows only with adequate
                                 public ways, utility, health, educational, and
                                 recreational facilities;
                                 2.That the needs of agriculture, industry, and
                                 business be recognized in future growth;
                                 3.That residential areas provide healthful
                                 surroundings for family life;
                                 4.That the growth of the community is
                                 commensurate with and promotes the efficient and
                                 economical use of public funds; and
                                 5. That the community strives for high aesthetic
                                 value, quality planning and design.
       WHITLEY COUNTY, IND., WHITLEY COUNTY ZONING ORDINANCE § 1.4

       (2006) (emphasis added). The plain language of the Ordinance shows that the

       Court of Appeals of Indiana | Opinion 92A03-1708-PL-1818| March 22, 2018     Page 9 of 10
       purpose is to protect the public in general. Moreover, Section 13.11 of the same

       Ordinance contains clear enforcement provisions: “the Plan Commission or

       any enforcement official designated by this Ordinance [to] bring an action in the

       Circuit or Superior Court of the County to evoke any legal, equitable, or special

       remedy, for the enforcement of any ordinance[.]” App. Vol. II, p. 16. The

       Trust has failed to establish that it has a private right of action pursuant to the

       Whitley County Zoning Ordinance. Accordingly, the trial court did not err

       when it found that the Trust did not have a private right of action under the

       Ordinance.


[18]   The judgement of the trial court is affirmed.


       Robb, J., and Crone, J., concur.




       Court of Appeals of Indiana | Opinion 92A03-1708-PL-1818| March 22, 2018   Page 10 of 10
