      MEMORANDUM DECISION
      Pursuant to Ind. Appellate Rule 65(D), this                        Mar 30 2015, 10:31 am
      Memorandum Decision shall not be regarded as
      precedent or cited before any court except for the
      purpose of establishing the defense of res judicata,
      collateral estoppel, or the law of the case.



      ATTORNEYS FOR APPELLANT
      Jody M. Butts
      Megan M. McCooe
      McNeely Stephenson
      Shelbyville, Indiana




                                                   IN THE
          COURT OF APPEALS OF INDIANA

      Louis Ridgeway,                                          March 30, 2015

      Appellant-Defendant,                                     Court of Appeals Case No.
                                                               67A04-1409-SC-410
              v.                                               Appeal from the Putnam Superior
                                                               Court
      Richard Jacobs,                                          The Honorable Charles D. Bridges,
                                                               Judge
      Appellee-Plaintiff
                                                               Case No. 67D01-1310-SC-556




      Vaidik, Chief Judge.



                                            Case Summary
[1]   Richard Jacobs sued Louis Ridgeway in small-claims court alleging that water

      run-off from Ridgeway’s property damaged his driveway, making it unpassable.

      The small-claims court found in favor of Jacobs and awarded him $4500 in
      Court of Appeals of Indiana | Memorandum Decision 67A04-1409-SC-410 | March 30, 2015       Page 1 of 8
      damages. Ridgeway now appeals, arguing that the common-enemy doctrine

      applies.


[2]   According to the common-enemy doctrine, surface water that does not flow in

      defined channels is a common enemy, and each landowner may deal with it in

      such a manner as best suits his own convenience. Here, the evidence presented

      at trial was that the “run-off” was surface water, which is subject to the

      common-enemy doctrine. That is, the evidence showed that the water flowed

      over several locations on Jacobs’ property—and not in a defined channel.

      According to the common-enemy doctrine, this is not actionable. We therefore

      reverse the small-claims court’s judgment in favor of Jacobs.



                            Facts and Procedural History
[3]   Ridgeway owns 103 acres of land on West County Road 350 North in Putnam

      County, Indiana, and has farmed it for forty years. Jacobs’ property abuts

      Ridgeway’s property on the west. Jacobs purchased his property in 1998 and

      last lived there in 2009 or 2010. It is undisputed that “run-off” from

      Ridgeway’s crop field has damaged Jacobs’ .25-mile-long driveway, creating a

      very large ditch that has made Jacobs’ driveway unpassable. See Appellant’s

      App. p. 9. As a result, Jacobs cannot reach his house by car.


[4]   In October 2013 Jacobs, pro se, filed a notice of claim in small-claims court.

      Jacobs alleged “water damage to driveway” because Ridgeway’s “run off of




      Court of Appeals of Indiana | Memorandum Decision 67A04-1409-SC-410 | March 30, 2015   Page 2 of 8
      water did away with my driveway.” Id. at 11. He sought $4500 in damages,

      plus interest and costs. Id.


[5]   The small-claims trial was held in March 2014. Ridgeway was represented by

      counsel. Jacobs testified that Ridgeway was “negligen[t]” because he had done

      “nothing” to stop the water from coming onto Jacobs’ property; Jacobs alleged

      that instead Ridgeway was required to do “conservation work” on his property

      to stop the water from coming onto Jacobs’ property. Tr. p. 6, 17, 21, 34; see

      also id. at 6 (“I’ve got pictures here that show the erosion of [Ridgeway’s] field

      and how it runs down directly on to my property. . . . It’s like a flash flood, it’s

      that fast.” (emphasis added)). Jacobs admitted into evidence photographs of

      Ridgeway’s field showing the erosion. Ex. 1 (three photos). Jacobs also

      admitted into evidence a letter from a conservationist at the United States

      Department of Agriculture who visited his and Ridgeway’s properties. Ex. 2.

      The conservationist addressed the “washed out crossings that [were] restricting

      access to [Jacobs’] property” and the “erosion issue” in “the crop field next to

      [Jacobs’] property.” Id.


[6]   Ridgeway testified about the run-off but said “it’s not coming from my farm, it’s

      coming from up above my farm.” Tr. p. 35. And he testified that it does so

      only when it rains two or three inches. Id. at 23. Ridgeway explained that he

      grades and fixes his field each year in order to maintain it and that he started

      planting wheat in order to slow the water. Id. at 35-36. In addition, Ridgeway

      said he “maintained [the] ravines, ke[pt] them built up, there’s been times I

      went and bought dirt and put dirt in them, to keep the field farmable.” Id. at 25.

      Court of Appeals of Indiana | Memorandum Decision 67A04-1409-SC-410 | March 30, 2015   Page 3 of 8
      Ridgeway was adamant that he did not make any improvements that would

      cause any surface water to run onto Jacobs’ property, and he said he never

      collected or disposed of water on Jacobs’ property. Id.


[7]   Finally, Ridgeway explained that about thirty years ago, Putnam County

      installed drainage systems called “whistles” on the east and north sides of his

      property. Id. at 22. Ridgeway did not request the whistles and had no input in

      their installation.


[8]   In closing, counsel for Ridgeway argued that the common-enemy doctrine

      applied and therefore Ridgeway was not liable for the damages to Jacobs’

      driveway. The trial court took the case under advisement and later found in

      favor of Jacobs. Appellant’s App. p. 7. After a damages hearing, the court

      issued the following order in August 2014:

              1. The Plaintiff presented credible testimony and a witness as to the
              damage the run-off from the Defendant’s farm field caused to the
              Plaintiff’s driveway.
              2. Said damage is in the form of an approximately 15’ wide x 9’ deep x
              50’ long ditch, which transverses the Plaintiff’s drive thereby
              preventing the Plaintiff from gaining access to his residence. Plaintiff’s
              estimate to repair the drive and install a drainage “whistle” is
              $4500.00.
              3. The Defendant has taken no corrective measures to prevent the run-
              off damage to Plaintiff’s property.
              4. This Judgment is for damages sustained to the Plaintiff’s driveway
              only.
      Id. at 9. Accordingly, the court ordered Ridgeway to pay Jacobs $4500 plus

      interest and costs of $94.


      Court of Appeals of Indiana | Memorandum Decision 67A04-1409-SC-410 | March 30, 2015   Page 4 of 8
[9]    Ridgeway now appeals.



                                  Discussion and Decision
[10]   Ridgeway contends that the trial court erred in determining that he was liable

       for the damage to Jacobs’ driveway. Jacobs has not filed an appellee’s brief.

       When an appellee does not submit a brief, we do not undertake the burden of

       developing arguments for that party. Thurman v. Thurman, 777 N.E.2d 41, 42

       (Ind. Ct. App. 2002). Instead, we apply a less stringent standard of review and

       may reverse if the appellant establishes prima facie error. Id.


[11]   Our standard of review in small-claims cases is well settled. Small-claims-court

       judgments are “subject to review as prescribed by relevant Indiana rules and

       statutes.” Ind. Small Claims Rule 11(A). Under Indiana Trial Rule 52(A), the

       clearly erroneous standard applies to appellate review of facts determined in a

       bench trial with due regard given to the opportunity of the trial court to assess

       witness credibility. This deferential standard of review is particularly important

       in small-claims actions, where trials are designed to speedily dispense justice by

       applying substantive law between the parties in an informal setting. Vance v.

       Lozano, 981 N.E.2d 554, 557 (Ind. Ct. App. 2012). But this deferential standard

       does not apply to the substantive rules of law, which are reviewed de novo just

       as they are in appeals from a court of general jurisdiction. Id. at 557-58.


[12]   The parties in small-claims court bear the same burdens of proof as they would

       in a regular civil action on the same issues. Ind. Small Claims Rule 4(A). It is


       Court of Appeals of Indiana | Memorandum Decision 67A04-1409-SC-410 | March 30, 2015   Page 5 of 8
       incumbent upon the party who bears the burden of proof to demonstrate that it

       is entitled to the recovery sought. Vance, 981 N.E.2d at 558. We consider

       evidence in the light most favorable to the judgment, together with all

       reasonable inferences to be drawn therefrom. Id. We will reverse a judgment

       only if the evidence leads to but one conclusion and the trial court reached the

       opposite conclusion. Id.


[13]   Ridgeway argues that the common-enemy doctrine applies to this case. Water

       classified as surface water is governed by the common-enemy doctrine:

               In its most simplistic and pure form the rule known as the “common
               enemy 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 manner as best suits his own convenience. Such
               sanctioned dealings include walling it out, walling it in[,] and diverting
               or accelerating its flow by any means whatever.
[14]   Long v. IVC Indus. Coatings, Inc., 908 N.E.2d 697, 702 (Ind. Ct. App. 2009)

       (quoting Argyelan v. Haviland, 435 N.E.2d 973, 976 (Ind. 1982)). However, this

       rule does not allow a landowner to “collect or concentrate surface water and

       cast it, in a body, upon his neighbor.” Crowel v. Marshall Cnty. Drainage Bd., 971

       N.E.2d 638, 649 (Ind. 2012) (quotation omitted).


[15]   Under the common-enemy 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 water 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 water did

       before. Argyelan, 435 N.E.2d at 976; Long, 908 N.E.2d at 702. A landowner
       Court of Appeals of Indiana | Memorandum Decision 67A04-1409-SC-410 | March 30, 2015   Page 6 of 8
       has the right to occupy and improve his land in such manner and for such

       purposes as he may see fit, including changing the surface or by erecting

       buildings thereon. Long, 908 N.E.2d at 702.


[16]   The common-enemy doctrine applies only to surface water, and not to a natural

       watercourse. Id. Surface water is defined as water that is diffused over the

       natural slope of the ground, not following a defined course or channel. Ross v.

       Bartholomew Cnty. Drainage Bd., 995 N.E.2d 1051, 1054 (Ind. Ct. App. 2013),

       reh’g denied, trans. denied. Surface water generally originates in rains and

       melting snows. Long, 908 N.E.2d at 703.


[17]   Here, the evidence presented at the small-claims trial was that the “run-off” was

       surface water, which is subject to the common-enemy doctrine. That is, the

       evidence was that the water flowed over several locations on Jacobs’ property—

       and not in a defined channel. See id. (“A natural watercourse is established

       when surface water begins to flow in a definite direction and there is a regular

       channel formed with well[-]defined banks and bottom and water flows therein,

       not necessarily continually but from time immemorial and for a substantial

       period of each year.” (quotation omitted)). For example, Jacobs testified: (1)

       the water “comes over” his driveway; (2) the water has “eroded my land all the

       way across my property down into the neighbors”; (3) “all[] this land use[d] to

       be . . . flat, now it’s like a rolley coaster”; and (4) “two (2) more roads down my

       property” were “also taken out.” Tr. p. 6, 9. This testimony shows that the

       run-off affected several locations on Jacobs’ property.



       Court of Appeals of Indiana | Memorandum Decision 67A04-1409-SC-410 | March 30, 2015   Page 7 of 8
[18]   Moreover, the exception to the common-enemy doctrine does not apply here.

       There is no evidence that Ridgeway collected or concentrated surface water and

       then cast it on Jacobs’ property.


[19]   According to the common-enemy doctrine, surface water that does not flow in

       defined channels is a common enemy, and each landowner may deal with it in

       such manner as best suits his own convenience. What this case boils down to is

       that Jacobs did not like how Ridgeway dealt with the water issue on his

       property. But according to the common-enemy doctrine, this is not actionable.

       See Crowel, 971 N.E.2d at 649 (“It is true that under Indiana law, the owner of

       higher lands is not liable for flooding of lower lands caused by natural surface-

       water drainage from his or her land.”). We therefore reverse the trial court’s

       judgment in favor of Jacobs.


[20]   Reversed.


       Kirsch, J., and Bradford, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 67A04-1409-SC-410 | March 30, 2015   Page 8 of 8
