MEMORANDUM DECISION
                                                                         FILED
Pursuant to Ind. Appellate Rule 65(D),                               Jul 15 2016, 9:34 am
this Memorandum Decision shall not be
                                                                         CLERK
regarded as precedent or cited before any                            Indiana Supreme Court
                                                                        Court of Appeals
court except for the purpose of establishing                              and Tax Court

the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
William O. Harrington                                    Daniel M. Witte
Harrington Law, P.C.                                     Aimee Rivera Cole
Danville, Indiana                                        Travelers Staff Counsel Office
                                                         Indianapolis, Indiana


                                           IN THE
    COURT OF APPEALS OF INDIANA
Brian L. Boyland; Jennifer K.                            July 15, 2016
Boyland; Anthony S. Climer;                              Court of Appeals Case No.
Lisa J. Climer; Sydney A.                                06A05-1509-CT-1383
Climer; Anthony S. Climer and
Lisa J. Climer, as parents and                           Appeal from the Boone Superior
next friends of Lydia J. Climer,                         Court
                                                         The Honorable Matthew C.
Appellants-Plaintiffs,
                                                         Kincaid, Judge
        v.                                               Trial Court Cause No.
                                                         06D01-1110-CT-493
Kenneth Hedge, in his capacity
as Boone County Surveyor;
Boone County Drainage Board;
Boone County Board of
Commissioners; JPMorgan
Chase Bank, N.A.; Specialized
Loan Servicing, L.L.C.; and
PNC Bank,
Appellees-Defendants


Court of Appeals of Indiana | Memorandum Decision 06A05-1509-CT-1383 | July 15, 2016         Page 1 of 20
      Bailey, Judge.




                                            Case Summary
[1]   Brian and Jennifer Boyland (“the Boylands”) and Anthony, Lisa, Sydney, and

      Lydia Climer (“the Climers”) (collectively, “Homeowners”) brought negligence

      and inverse condemnation claims against Kenneth Hedge (“Hedge”), in his

      capacity as Boone County Surveyor, the Boone County Drainage Board, and

      the Boone County Board of Commissioners (collectively, “the Boone County

      defendants”).1 In answering the negligence claims, the Boone County

      defendants raised a defense of discretionary function immunity. Homeowners

      sought, and were denied, partial summary judgment on this defense. After a

      bench trial regarding the applicability of the defense, judgment was entered for

      the Boone County defendants on the negligence claims. Summary judgment

      was subsequently granted to the Boone County defendants on the inverse

      condemnation claims. Homeowners challenge the denial of their motion for

      partial summary judgment on the immunity defense and also challenge the

      grant of summary judgment on the inverse condemnation claims. We affirm.




      1
       JP Morgan Chase Bank, N.A., Specialized Loan Servicing, LLC, and PNC Bank were named as additional
      defendants to answer for their respective interests in inverse condemnation proceedings. These parties were
      not active parties in the litigation and are not active parties on appeal.

      Court of Appeals of Indiana | Memorandum Decision 06A05-1509-CT-1383 | July 15, 2016           Page 2 of 20
                                                        Issues
[2]   Homeowners present two issues for review:

                 I.       Whether they were entitled to partial summary judgment
                          on the statutory affirmative defense of discretionary
                          function immunity, precluding the bench trial; and


                 II.      Whether the trial court improvidently granted summary
                          judgment to the defendants on the inverse condemnation
                          claims.


                                Facts and Procedural History
[3]   Homeowners own two parcels of residential property located on West County

      Road 300 South in Boone County, Indiana. County Road 300 is at a higher

      elevation than the residences, which appear to “sit in a bowl.” (Tr. at 666.)

      The residential properties are beside Dickey Ditch, a tributary to Big Raccoon

      Creek.2 The water flows east to west adjacent to the south property line of the

      Climer property; it flows east to west adjacent to the south property line of the

      Boyland property and then turns to flow south to north adjacent to the west

      property line of the Boyland property.


[4]   Several times since 2002, the Climers and Boylands have experienced

      residential flooding that occurred after periods of unusually heavy rain. In




      2
          Dickey Ditch existed before the residences were constructed.


      Court of Appeals of Indiana | Memorandum Decision 06A05-1509-CT-1383 | July 15, 2016   Page 3 of 20
      2005, the Boylands filed a lawsuit against the Boone County defendants. The

      lawsuit was dismissed.


[5]   After dismissal of the first lawsuit, Hedge was notified of a subsequent flooding

      event and persuaded the Boone County Drainage Board to obtain an

      engineering study with respect to Dickey Ditch. The firm of Christopher B.

      Burke Engineering, Ltd. performed a hydrologic and hydraulic analysis of

      Dickey Ditch near the Homeowners’ properties and compiled a report (“the

      Burke Report”). “Potential Measures” were identified in the Burke Report.

      The potential measures identified included the following: replace existing

      culverts; eliminate a 15 inch diameter culvert pipe; increase the ditch size;

      remove sediment related to beaver dams; acquire the Homeowners’ properties;

      and lower an area that effectively functioned as a levee because the elevation at

      the south was higher than the elevation at the north.


[6]   At a 2008 presentation before the Boone County Drainage Board (which

      included three members who were also Boone County Commissioners), a

      representative of the Burke engineering firm explained that replacement of

      existing culverts could cost more than $870,000.00 and flooding risk would be

      lessened but not eliminated. Also, he explained that reconstruction extensive

      enough to result in a large bridge classification would require, by federal

      regulation, an inspection every two years. There ensued some discussion

      clarifying that “a million bucks” could be spent without a “cure,” and that the

      Board of Commissioners would be tasked with making a final decision because

      road crossings were involved. (App. at 324.) No vote was taken and no

      Court of Appeals of Indiana | Memorandum Decision 06A05-1509-CT-1383 | July 15, 2016   Page 4 of 20
      “potential measure” was specifically adopted. In the ensuing years, none of the

      “potential measures” were implemented, other than tile repair, brush removal,

      and destruction of beaver dams (with some related sediment removal).


[7]   Flooding again occurred in 2011. On March 30, 2011, Homeowners served tort

      claims notices on the Boone County defendants. Their first complaint was filed

      on October 20, 2011. As later amended, after a flooding event in 2013, the

      complaint sought injunctive relief and also asserted negligence, trespass, and

      inverse condemnation claims. The Boone County defendants answered the

      complaint and asserted that the affirmative defense of discretionary function

      immunity precluded recovery on the negligence claims. Homeowners

      requested that partial summary judgment be entered against the Boone County

      defendants on the immunity defense while the Boone County defendants

      sought summary judgment on the negligence claims on both immunity and

      proximate cause grounds.


[8]   On February 14, 2014, the trial court entered an order denying the cross-

      motions. The trial court stated that the defendants had not shown their

      entitlement to summary judgment because:

              there is a genuine issue of material fact whether anything Boone
              County did or did not do with regard to Dickey Ditch
              proximately caused flooding to the Climer and Boyland
              properties. A trial is necessary on that subject matter.


      (App. at 976.) As for the immunity defense, the trial court concluded:



      Court of Appeals of Indiana | Memorandum Decision 06A05-1509-CT-1383 | July 15, 2016   Page 5 of 20
               Neither side, at this time, has demonstrated conclusively either
               that there is or is not immunity. Accordingly, Plaintiff’s Motion
               for Partial Summary Judgment on the question of immunity also
               should be and now is DENIED.


       (App. at 976.)


[9]    On September 9, 2014, the trial court entered an order approving an “Agreed

       Motion for Case Management and Separate Trials.” (App. at 1016.) It was

       determined that two sets of claims would go forward – negligence and inverse

       condemnation – and would proceed on separate “tracks.” (App. at 1017.)

       First, the trial court was to conduct a bench trial “limited to the issue of

       whether the defense of discretionary function immunity is available to

       Defendants as a complete defense with respect to the negligence claims.” (App.

       at 1018.) A jury trial on the negligence claims was tentatively scheduled. The

       inverse condemnation claims were set for a subsequent jury trial date.


[10]   On December 18, 2014, with the Homeowners’ objection having been made,

       the trial court conducted a bench trial on the issue of availability of the

       discretionary function immunity defense. On February 24, 2015, the trial court

       entered judgment in favor of the Boone County defendants, concluding that

       they were entitled to immunity.


[11]   On April 28, 2015, the Boone County defendants filed a motion for summary

       judgment with respect to the inverse condemnation claims. Homeowners filed

       a cross-motion for summary judgment. On August 19, 2015, the trial court



       Court of Appeals of Indiana | Memorandum Decision 06A05-1509-CT-1383 | July 15, 2016   Page 6 of 20
       entered an order granting summary judgment to the Boone County defendants

       on the remaining counts against them. This appeal ensued.



                                  Discussion and Decision
                            Discretionary Function Immunity
                                          Standard of Review
[12]   Our review of the grant or denial of a summary judgment motion is the same as

       it is for the trial court: whether there is a genuine issue of material fact, and

       whether the moving party is entitled to judgment as a matter of law. Kroger Co.

       v. Plonski, 930 N.E.2d 1, 4-5 (Ind. 2010). In conducting our review of the

       evidence sanctioned by Indiana Trial Rule 56(C), we construe all factual

       inferences in favor of the non-moving party, and all doubts as to the existence

       of a material issue must be resolved against the moving party. Id. at 5.


[13]   A genuine issue of material fact exists when the facts concerning an issue that

       would dispose of the litigation are in dispute or where the undisputed material

       facts are capable of supporting conflicting inferences on the issue. Indiana Dep’t

       of Transp. v. Sadler, 33 N.E.3d 1187, 1190 (Ind. Ct. App. 2015). Where the

       evidence is in conflict, or undisputed facts lead to conflicting inferences, a grant

       of summary judgment is inappropriate, even if it appears that the nonmovant

       will not succeed at trial. Id.


[14]   Our standard of review is not altered by the fact that the parties made cross-

       motions for summary judgment. Indiana Farmers Mut. Ins. Grp. v. Blaskie, 727

       Court of Appeals of Indiana | Memorandum Decision 06A05-1509-CT-1383 | July 15, 2016   Page 7 of 20
       N.E.2d 13, 15 (Ind. Ct. App. 2000). Instead, we consider each motion

       separately to determine whether the moving party is entitled to judgment as a

       matter of law. Alva Elec., Inc. v. Evansville-Vanderburgh Sch. Corp., 7 N.E.3d 263,

       267 (Ind. 2014).


                                                    Analysis
[15]   The Boone County defendants raised an affirmative defense described in

       Indiana Code Section 34-13-3-3(7):


               A governmental entity or an employee acting within the scope of
               the employee’s employment is not liable if a loss results from the
               following: (7) The performance of a discretionary function[.]


[16]   The Indiana Tort Claims Act (“the ITCA”) provides that governmental entities

       may be liable for torts committed by its agencies and its employees, but protects

       governments from liability in certain circumstances. Peavler v. Monroe Cnty. Bd.

       of Comm’rs, 528 N.E.2d 40, 42 (Ind. 1988). The policy underlying governmental

       immunity is the idea that certain kinds of executive branch decisions should not

       be subject to judicial review. Id. at 44. The separation of powers doctrine

       forecloses the courts from reviewing political, social, and economic actions

       within the province of coordinate branches of government. Id.


[17]   In Peavler, our Indiana Supreme Court adopted the planning/operational test

       for determining whether an act is a discretionary function:

               [u]nder the planning/operational dichotomy, the type of
               discretion which may be immunized from tort liability is
               generally that attributable to the essence of governing. Planning
       Court of Appeals of Indiana | Memorandum Decision 06A05-1509-CT-1383 | July 15, 2016   Page 8 of 20
               activities include acts or omissions in the exercise of a legislative,
               judicial, executive or planning function which involves
               formulation of basic policy decisions characterized by official
               judgment or discretion in weighing alternatives and choosing
               public policy. Government decisions about policy formation
               which involve assessment of competing priorities and a weighing
               of budgetary considerations or the allocation of scarce resources
               are also planning activities.


       528 N.E.2d at 45 (internal citations omitted). “The critical inquiry is not

       merely whether judgment was exercised but whether the nature of the judgment

       called for policy considerations.” Id. Operational functions are characterized

       by the execution or implementation of previously formulated policy. City of

       Valparaiso v. Defler, 694 N.E.2d 1177, 1182 (Ind. Ct. App. 1998), trans. denied.


[18]   Here, Homeowners do not argue that the trial court ultimately misapplied the

       Peavler test when making the determination of immunity at the conclusion of

       the bench trial. Rather, Homeowners focus upon their claimed entitlement to a

       partial summary judgment order precluding the Boone County defendants from

       further efforts to establish the defense.


[19]   In denying partial summary judgment, the trial court stated that factual

       development was needed for appropriate application of the

       planning/operational test.3 Homeowners acknowledge that there were factual




       3
         The Peavler Court acknowledged that factual development may be necessary: “The issue of whether an act
       is discretionary and therefore immune is a question of law for the court’s determination. The question may
       require an extended factual development.” 528 N.E.2d at 46.

       Court of Appeals of Indiana | Memorandum Decision 06A05-1509-CT-1383 | July 15, 2016           Page 9 of 20
disputes at that time. Although Homeowners took the position that

reconstructive efforts should have been undertaken, it was also disputed

whether inadequate maintenance played a role in flooding. At a minimum, the

trial court yet needed to identify the extent of the particular actions or inactions

by the Boone County defendants that were at issue.4 The trial court would then

evaluate the conduct by application of factors, as outlined in Peavler, which,

under most circumstances, point toward immunity:


        The nature of the conduct: whether the conduct has a regulatory
        objective; whether the conduct involved the balancing of factors
        without reliance on a readily ascertainable rule or standard;
        whether the conduct requires a judgment based on policy
        decisions; whether the decision involved adopting general
        principles or only applying them; whether the conduct involved
        establishment of plans, specifications and schedule; and whether
        the decision involved assessing priorities, weighing of budgetary
        considerations or allocation of resources.


        The effect on governmental operations: whether the decision
        affects the feasibility or practicability of a government program;
        and whether liability will affect the effective administration of the
        function in question.




4
  According to Homeowners, Dickey Ditch is a regulated drain in need of reconstruction, but also the
defendants failed to adequately maintain the ditch. The designated materials placed a major focus upon the
lack of implementation of measures identified in the Burke Report. However, there were references to
affirmative conduct, such as alleged creation of a swale and placement of culvert pipe that was allegedly
inadequate. In some cases, it may be understood that Homeowners claimed actions were taken, such as
sediment removal, but to an inadequate extent.

Court of Appeals of Indiana | Memorandum Decision 06A05-1509-CT-1383 | July 15, 2016          Page 10 of 20
               The capacity of the court to evaluate the propriety of the
               government’s action – Whether tort standards offer an
               insufficient evaluation of the plaintiff’s claim.


       Peavler, 528 N.E.2d at 46. The government is exposed to liability when no

       policy-oriented decision-making process has been undertaken. Id. at 47.


[20]   According to Homeowners, the trial court need not have conducted a bench

       trial to implement this framework. Homeowners argue: “since the trial court

       found that issues of fact existed regarding whether Discretionary Function

       Immunity should apply, the trial court should have concluded that the

       Discretionary Function Immunity Defense is not available to the Boone County

       Defendants.” Appellants’ Br. at 31. As best we can discern Homeowners’

       argument, they contend that summary judgment in their favor was mandatory

       in light of factual disputes and the strict construction given to an immunity

       statute enacted in derogation of the common law. This would seem to turn the

       summary judgment standard on its head.


[21]   Homeowners direct our attention to Farley v. Hammond Sanitary District, 956

       N.E.2d 76 (Ind. Ct. App. 2011), an appeal brought by homeowners whose

       basements had been flooded with sewage during a severe storm. In Farley, a

       panel of this Court concluded that summary judgment had been improvidently

       granted to the Hammond Sanitary District “on the plaintiffs’ tort claims on

       grounds of immunity.” Id. at 83. The Farley decision relied heavily upon our

       Indiana Supreme Court’s guidance in Gary Cmty. Sch. Corp. v. Roach-Walker, 917

       N.E.2d 1224, 1226 (Ind. 2009).

       Court of Appeals of Indiana | Memorandum Decision 06A05-1509-CT-1383 | July 15, 2016   Page 11 of 20
[22]   In Roach-Walker, the plaintiff had slipped and fallen at a school. She brought

       suit, claiming that the school’s negligence in maintaining the walkway had

       caused her injury. At trial, the school had moved for a directed verdict,

       contending that the ITCA conferred immunity because the fall occurred as a

       result of temporary conditions caused by weather. 917 N.E.2d at 1225. The

       trial court concluded that the claim of immunity raised disputed factual issues

       and denied the motion. Id. The jury found for the plaintiff and the school

       appealed.


[23]   On appeal, the Court observed that the parties disputed only whether the fall

       resulted from a temporary condition caused by weather and that “the record as

       to weather conditions is inconclusive.” 917 N.E.2d at 1225. In response to the

       request of the appellant-defendant that the Court adopt a rebuttable

       presumption that all icy conditions are temporary, “effectively shifting the

       burden to the plaintiffs to disprove immunity,” the Court observed: “Because

       the ITCA is in derogation of the common law, we construe the act strictly

       against limiting a claimant’s right to bring suit.” Id. at 1228-29. The Court also

       discussed, in general, the establishment of the immunity defense:


               Whether an immunity applies is a matter of law for the courts to
               decide. The party seeking immunity bears the burden of
               establishing the immunity. If the facts allow multiple reasonable
               conclusions as to the element triggering the immunity, then the
               governmental unit has failed to establish its immunity. Of
               course, the government may still escape liability if it can
               demonstrate it owed no duty to the plaintiffs, did not breach its
               duty, or did not cause any damages.


       Court of Appeals of Indiana | Memorandum Decision 06A05-1509-CT-1383 | July 15, 2016   Page 12 of 20
       Id. at 1226.


[24]   This language in Roach-Walker, later cited in Farley, a summary judgment case,

       does not dictate the result desired by Homeowners. Homeowners ignore the

       procedural posture of Farley, that is, the party asserting the immunity defense

       had been granted summary judgment despite factual issues. There, this Court

       stated:


                 We are required by our standard of review to construe the facts in
                 the light most favorable to Farley and Paul. These facts allow
                 multiple reasonable conclusions as to an element triggering
                 governmental immunity; consequently, HSD has failed to establish
                 its immunity.


       Farley, 956 N.E.2d at 83 (emphasis added).


[25]   Homeowners apparently believe that they were entitled to partial summary

       judgment on the immunity defense because the Boone County defendants did

       not show the absence of a factual dispute. We must review Homeowners’

       motion separately, Alva Elec. Inc., 7 N.E.3d at 267. Under our summary

       judgment standard, Homeowners could not prevail by showing the existence of

       a factual dispute. Rather, Homeowners would properly be granted partial

       summary judgment only if they demonstrated the absence of a genuine issue of

       material fact and that they were entitled to partial summary judgment as a

       matter of law. That is, Homeowners needed to establish that the Boone County

       defendants were not entitled to immunity as a matter of law. T.R. 56(A). They

       did not do so. The trial court properly denied the motion for partial summary


       Court of Appeals of Indiana | Memorandum Decision 06A05-1509-CT-1383 | July 15, 2016   Page 13 of 20
       judgment and proceeded with a hearing to allow the development of an

       extended factual basis for determining the question of immunity.


                                      Inverse Condemnation
[26]   Article 1, section 21 of the Indiana Constitution provides that “No person’s

       property shall be taken by law, without just compensation; nor, except in case

       of the State, without such compensation first assessed and tendered.” The Fifth

       Amendment to the U.S. Constitution similarly provides that “nor shall private

       property be taken for public use, without just compensation.” The Fifth

       Amendment’s Takings Clause applies to the states through the Due Process

       Clause of the Fourteenth Amendment. State v. Kimco of Evansville, Inc., 902

       N.E.2d 206, 210 (Ind. 2009). The state and federal takings clauses are textually

       indistinguishable and are to be analyzed identically. Id. An exercise of eminent

       domain is clearly a taking; however, other forms of governmental action are

       “takings” only if they meet the prevailing federal standard. Id. at 210-11. That

       standard is: governmental action effects a taking if it deprives an owner of all or

       substantially all economic use of his or her property. Id. at 211. However,

       legislatures may confer greater rights to compensation for government action

       than those afforded by the constitutional takings clauses. Id. at 212.


[27]   Indiana Code Section 32-24-1-16 provides:


               A person having an interest in property that has been or may be
               acquired for a public use without the procedures of this [Eminent
               Domain] article or any prior law followed is entitled to have the



       Court of Appeals of Indiana | Memorandum Decision 06A05-1509-CT-1383 | July 15, 2016   Page 14 of 20
               person’s damages assessed under this article substantially in the
               manner provided in this article.


[28]   Homeowners’ amended complaint alleged that, “by breaching their duties,” the

       Boone County defendants had “acquired the [Boyland and Climer] Real Estate

       for a public use – namely, as an extension of the Dickey Ditch, without

       following the procedures for acquiring real estate by eminent domain under

       Indiana law.”5 (App. at 70.) They now contend that the trial court

       improvidently granted summary judgment to the defendants on the inverse

       condemnation claims.


[29]   With respect to inverse condemnation claims, our Supreme Court has stated the

       following:

               The state has inherent authority to take private property for
               public use. Kelo v. City of New London, 545 U.S. 469, 477, 125 S.
               Ct. 2655, 162 L. Ed. 2d 439 (2005). The Indiana Constitution
               and the Fifth Amendment require just compensation if this
               authority is exercised. Schnull v. Indianapolis Union Ry. Co., 190
               Ind. 572, 575, 131 N.E. 51, 52 (1921). Indiana Code Chapter 32-
               24-1 (2004) outlines the process by which the state is to initiate
               eminent domain proceedings. If the government takes property
               but fails to initiate proceedings, Section 32-24-1-16 explicitly
               allows an owner of property acquired for public use to bring a
               suit for inverse condemnation to recover money damages:




       5
        The Homeowners now contend that, in 2002, prior to their Tort Claims Notice filed in this case, the Boone
       County defendants accomplished a “taking” by “diverting additional drainage into the Dickey Ditch
       upstream of Plaintiffs’ property via the Large Drainage Swale.” Appellants’ Br. at 37. They describe their
       properties “as a retention pond.” Appellants’ Br. at 38.

       Court of Appeals of Indiana | Memorandum Decision 06A05-1509-CT-1383 | July 15, 2016         Page 15 of 20
               A person having an interest in property that has been or may be
               acquired for a public use without the procedures of this article or
               any prior law followed is entitled to have the person’s damages
               assessed under this article substantially in the manner provided in
               this article.


               An action for inverse condemnation requires: “(1) a taking or
               damaging; (2) of private property; (3) for public use; (4) without
               just compensation being paid; and (5) by a governmental entity
               that has not instituted formal proceedings.” 29A C.J.S. Eminent
               Domain § 560 (2007).


       Murray v. City of Lawrenceburg, 925 N.E.2d 728, 731 (Ind. 2010).


[30]   An inverse condemnation action has two stages: (1) the landowner must show

       that he has an interest in land which has been taken for public use without

       having been appropriated under eminent domain laws; and (2) if the court finds

       that a taking has occurred, then the court appoints appraisers and damages are

       assessed. Mendenhall v. City of Indianapolis, 717 N.E.2d 1218, 1227 (Ind. Ct.

       App. 1999), trans. denied. A taking by inverse condemnation includes any

       substantial interference with private property that destroys or impairs one’s free

       use, enjoyment, or interest in the property. Id. Ordinarily, the question of

       whether a particular interference is substantial is a question of fact for the fact-

       finder. Id. An action for inverse condemnation is premature until such time as

       the landowner can establish that his property has been deprived of all

       economically beneficial or productive use. Id. at 1227-28.


[31]   If there is no public use, neither eminent domain nor inverse condemnation

       would apply. Murray at 733. Whether a particular use is a public use is a
       Court of Appeals of Indiana | Memorandum Decision 06A05-1509-CT-1383 | July 15, 2016   Page 16 of 20
       question of law. Id. (citing 11A Ind. L. Enc. Eminent Domain § 10, at 254

       (2007)).


[32]   In Beck v. City of Evansville, 842 N.E.2d 856 (Ind. Ct. App. 2006), homeowners

       sought damages on a claim of inverse condemnation after the City of Evansville

       suffered two major storm events, one in 2003, and one in 2004. Surface water

       and sewage flowed on the property and into the homeowners’ homes. The

       homeowners appealed challenging the trial court’s grant of summary judgment.

       In affirming the trial court’s decision, this Court stated:

               [T]here has been no taking of any actual physical part of the
               homeowners’ real estate, nor have any important rights attached
               to the real estate been taken. There has been no permanent
               physical occupation of any definable part of the homeowners’
               property, and there has been no transfer of a definable part of the
               homeowners’ properties. To the contrary, the homeowners or
               tenants have continued to live in their homes. In essence, the
               homeowners’ free use, enjoyment, and interest in their properties
               have not been impaired. Thus, we conclude that there has been
               no taking of the homeowners’ property as a matter of law under
               either the United States or Indiana Constitutions.


       842 N.E.2d at 864.


[33]   Similarly, in Rodman v. Wabash, 497 N.E.2d 234 (Ind. Ct. App. 1986), we held

       that sewer backup into a homeowner’s basement six times over the course of a

       three-year period did not constitute a taking. In affirming the trial court’s grant

       of summary judgment in favor of the city, we stated:




       Court of Appeals of Indiana | Memorandum Decision 06A05-1509-CT-1383 | July 15, 2016   Page 17 of 20
               A taking may be found when governmental activity results in
               significant physical damage to property that impairs its use. The
               distinction between regulation and taking is one of degree. The
               state possesses the power to regulate property without payment
               of compensation, but if the regulation goes too far in impairing
               the use of property, a taking will be found.


               Six times from the spring of 1980 through the spring of 1983, city
               sewers have backed up into the Rodmans’ basement. The record
               does not indicate how long the sewage remained in the basement
               after each episode or how long the use of the Rodmans’ basement
               was seriously interfered with. We find that short term
               interference, presumably for a few days, six times over the course
               of a three year period does not rise to the level of a taking.


               There has been no permanent physical occupation of a definable
               part of the Rodmans’ property, nor has there been a transfer of a
               definable part of their property. Nor has the City removed the
               Rodmans’ right to exclude others from their property. We find
               the trial court correctly concluded no genuine issue of material
               fact existed on the Rodmans’ federal constitutional claim [of just
               compensation for a taking].


       497 N.E.2d at 242.


[34]   Homeowners rely upon Arkansas Game & Fish Comm’n v. United States, 133 S.Ct.

       511 (2012), to support their argument that damages resulting from temporary

       flooding can amount to a compensable taking. Arkansas Game involved periodic

       flooding of forest land by the U.S. Army Corps of Engineers. From 1993 until

       2000, the repeated flooding damaged or destroyed more than 18 million board

       feet of timber and disrupted the ordinary use and enjoyment of the Arkansas

       Game and Fish Commission’s property. The Court ruled that “government-

       Court of Appeals of Indiana | Memorandum Decision 06A05-1509-CT-1383 | July 15, 2016   Page 18 of 20
       induced flooding temporary in duration gains no automatic exemption from

       Takings Clause inspection.” 133 S.Ct. at 522. Also relevant to the takings

       inquiry is the degree to which the invasion is intended or is the foreseeable

       result of authorized government action. Id. So too are the character of the land

       and the owner’s reasonable investment-backed expectations regarding the land

       use. Id.


[35]   Here, there is no intentional invasion of Homeowners’ property, as was the case

       in Arkansas Game. The designated evidence, including Board minutes,

       demonstrates that the Boone County defendants paid approximately $14,000.00

       to an engineering firm in the hopes of preventing the invasion of waters onto

       Homeowners’ properties. The Boone County defendants did not garner a

       benefit and Homeowners’ property was not subjected to public “use.” Rather,

       the designated evidence discloses circumstances akin to those present in Beck

       and Rodman, that is, an unintended and short-term interference as opposed to a

       permanent physical occupation. The summary judgment materials would

       support but one conclusion: the temporary occupation of Homeowners’

       property by surface water that had increased in volume during extraordinary

       rainfall did not amount to a taking by the Boone County defendants for public

       use.



                                               Conclusion



       Court of Appeals of Indiana | Memorandum Decision 06A05-1509-CT-1383 | July 15, 2016   Page 19 of 20
[36]   The trial court properly denied Homeowners’ motion for partial summary

       judgment prior to the bench trial. The trial court properly granted summary

       judgment to the defendants on the inverse condemnation claims.


[37]   Affirmed.


       Bradford, J., and Altice, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 06A05-1509-CT-1383 | July 15, 2016   Page 20 of 20
