                                                                             Feb 05 2016, 8:49 am




ATTORNEYS FOR APPELLANT                                    ATTORNEYS FOR APPELLEES
C. Gregory Fifer                                           William Edward Jenner
Applegate Fifer Pulliam LLC                                David R. Sutter
Jeffersonville, Indiana                                    Jenner Pattison Sutter & Wynn LLP
                                                           Madison, Indiana
Robert G. Bottorff, II
Jeffersonville, Indiana



                                            IN THE
    COURT OF APPEALS OF INDIANA

Liter’s of Indiana, Inc.,                                 February 5, 2016
Appellant-Plaintiff,                                      Court of Appeals Cause No.
                                                          39A05-1408-PL-401
        v.
                                                          Appeal from the Jefferson
Earl E. Bennett and Daniel L.                             Circuit Court
Bodine,                                                   The Honorable Alison T.
Appellees-Defendants.                                     Frazier, Special Judge
                                                          Cause No. 39C01-0702-PL-84



Riley, Judge.




Court of Appeals of Indiana | Opinion 39A05-1408-PL-401 | February 5, 2016                          Page 1 of 28
                              STATEMENT OF THE CASE

Appellant-Plaintiff, Liter’s of Indiana, Inc. (Liter’s), appeals the trial court’s

judgment entered pursuant to a jury’s verdict in favor of the Appellees-

Defendants, Earl Bennett (Bennett) and Daniel Bodine (Bodine) (collectively,

the Appellees).


We affirm, and remand with instructions only as to the issuance of permanent

injunction with regards to the trespass claim.


                                               ISSUES

Liter’s raises three issues on appeal which we restate as follows:

(1) Whether the common enemy doctrine precludes the Appellees’ negligence

claim against Liter’s;

(2) Whether the trial court abused its discretion in admitting certain expert

testimony; and

(3) Whether the jury awarded inadequate damages on Liter’s trespass claim.


                      FACTS AND PROCEDURAL HISTORY

Around 1982, Bennett and his father purchased 27.25 acres in Hanover,

Jefferson County, Indiana (Appellees’ Property). The existing home on the

property served as Bennett’s home. In 1992, Bodine, Bennett’s half-brother,

inherited his father’s one-half interest in the Appellees’ Property, thereby

making him a joint owner. The land adjoining to the east was owned by

Richard Clem (Clem). Clem had developed the furthest east side of his

property with residential housing and named it Jefferson Manor, Phase I. The

Court of Appeals of Indiana | Opinion 39A05-1408-PL-401 | February 5, 2016   Page 2 of 28
western portion, which was approximately 28.072 acres and abutted the

Appellees’ Property, remained undeveloped, and in early 2006, Clem accepted

Liter’s, a construction service company, offer to purchase these remaining

28.072 acres (Liter’s Property). The Appellees’ and Liter’s Properties were

bordered on the south by Highway 62, and the Appellees’ Property and Liter’s

Property now shared a boundary line. In the middle of the two Properties,

there was a shallow ditch on the boundary line and after a rainfall, water would

collect in the ditch and run south from the Liter’s Property to the Appellees’

existing twelve-inch culvert and flow out through Highway 62.


LQI Development, Inc. (LQI), a company owned by Liter’s, projected to

develop the Liter’s Property into a residential subdivision comprising of sixty

three lots. The subdivision was to be known as Jefferson Manor, Phase II.

Embarking on its plan, on March 20, 2006, Liter’s hired Blankenbeker & Son

Land Surveyors Inc. (Blankenbeker) to conduct a boundary survey.

Consequently, Liter’s applied for a preliminary plat from the City of Madison

Plan Commission (the Commission). On May 1, 2006, an advisory hearing

was held to consider Liter’s application. During the meeting, an issue arose

regarding drainage on Liter’s Property, and the Commission directed Liter’s,

through its engineers, to consider constructing a detention basin so as to relieve

“down-stream neighbors” from flooding. (Transcript p. 884). On a follow-up

meeting held on July 6, 2006, Liter’s attorney informed the Commission that

Liter’s would procure a drainage easement from its neighbors prior to the




Court of Appeals of Indiana | Opinion 39A05-1408-PL-401 | February 5, 2016   Page 3 of 28
Commission’s approval of the final plat. At the close of the meeting, the

Commission approved Liter’s preliminary plat. 1


Liter’s believed that the Appellees had encroached on its property because: (1)

the eaves of Bennett’s roof visibly extended “by two feet” on its property, (2)

Bennett’s driveway trees sat on Liter’s Property, (3) and Bennett’s satellite dish

was rooted on Liter’s Property. (Appellant’s App. p. 112). In addition, each

time Bennett mowed the grass bordering the boundary line, he would trespass

on Liter’s Property. (Appellant’s App. p. 112). On September 25, 2006,

Blankenbeker completed its initial survey, which did not confirm the

aforementioned alleged encroachments. On October 26, 2006, Blankenbeker

revised the initial survey. Again, the alleged encroachments were undetected.

Still, in the same month and in an effort to resolve the impending drainage issue

raised by the Commission, Liter’s approached the Appellees seeking to

construct a retention basin 2 on the Appellees’ Property. The Appellees rejected

Liter’s proposal.




1
    The record shows that in November 2007, the Commission approved the final plat.
2
 Section 5 of the Madison County Stormwater Drainage Ordinance defines a retention basin as a storm
water storage facility without a defined/constructed discharge point.

Court of Appeals of Indiana | Opinion 39A05-1408-PL-401 | February 5, 2016                  Page 4 of 28
On January 16, 2007, through a letter, Liter’s once again approached the

Appellees and offered $2,500 in exchange for the grant of an easement to

construct a storm water detention basin 3 on the Appellees’ Property. In

addition, Liter’s proposed to execute an easement in favor of the Appellees,

thus providing them with an access strip which would allow Bennett to walk

and mow around his house without trespassing on the Liter’s Property, and to

also keep the unpermitted encroachments. On the same day, the Appellees,

through their lawyer, rejected that offer. Following that rejection, Liter’s

commissioned Blankenbeker to commence plans to build a detention basin on

its property.


Since prior surveys did not reveal the encroachments, Liter’s instructed

Blankenbeker to conduct a third survey, which was finalized on February 5,

2007. That survey confirmed Liter’s allegations, and consistent with those

findings, on February 7, 2007, Liter’s filed a Complaint seeking to enjoin and

recover damages for the continuing trespass on its property. On April 3, 2007,

the Appellees counterclaimed, alleging nuisance since Liter’s had erected a spite




3
 Section 5 of the Madison County Stormwater Drainage Ordinance defines a detention basin as a facility
constructed or modified to restrict the runoff of storm water to a prescribed rate, and/or to detain excess
waters that accumulate upstream from the outlet.

Court of Appeals of Indiana | Opinion 39A05-1408-PL-401 | February 5, 2016                        Page 5 of 28
fence 4 which deprived them of light and air. On April 23, 2007, Liter’s filed its

response stating that the chain link fence could not reasonably deprive the

Appellees of light and air. On January 14, 2009, following leave of court, the

Appellees amended their Counterclaim to contend that Liter’s had negligently

designed its subdivision and that the post-development surface water runoff

from the Liter’s Property would flood the Appellees’ Property. In the same

month, Liter’s filed its response.


Almost two years later, on December 6, 2010, Liter’s filed a motion for

summary judgment on the Appellees’ negligence claim and on Liter’s trespass

claim. In support of its motion, Liter’s argued that Indiana’s common enemy

doctrine—which provides that 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—applied; therefore, it could not be

liable for negligence. On its trespass claim, Liter’s argued that the facts were

unrebutted. The Appellees’ sole rebuttal to Liter’s assertion that the common

enemy doctrine barred their claim was that the doctrine was abrogated by the

adoption of Indiana Code section 36-9-27-69.5—which provides in part: (1) that




4
 Indiana Code section 32-26-10-1, titled “Description of Spite Fence,” defines as a nuisance “a fence
unnecessarily exceeding six (6) feet in height, maliciously erected . . . for the purpose of annoying the owners
or occupants of adjoining property.”

Court of Appeals of Indiana | Opinion 39A05-1408-PL-401 | February 5, 2016                          Page 6 of 28
a drainage plan must maintain the amount of drainage through the tract that

existed when the tract was created; (2) the plan may not change locations where

surface water enters the tract and exits the tract; and (3) water that sheds off a

new structure especially when the new structure is elevated or near a property

line or both must exit the tract in the same location where it did when the tract

was created. A hearing on the summary judgement motion was held on

November 21, 2011, and the trial court took the matter under advisement.

Without issuing specific findings, on March 5, 2012, the trial court summarily

found there were genuine issues of material fact that precluded a disposition.


Following the denial of Liter’s summary judgment motion, on June 12, 2012,

the Appellees filed their Second Amended Counterclaim, adding a third claim

pursuant to Indiana Code section 36-9-27-69.5 which provides requirements for

drainage plans when subdividing lots. In addition, the Appellees sought a

declaratory judgment in the interpretation and application of Indiana Code

section 36-9-27-69.5 to the case. On November 26, 2012, following a hearing,

the trial court determined that Indiana Code section 36-9-27-69.5 was

inapplicable to the case and it dismissed the Appellees’ third claim.


On March 5, 2014, Liter’s filed a motion seeking to dismiss portions of the

Appellees’ Second Amended Counterclaim. On June 4, 2014, the trial court

entered an order granting in part and denying in part Liter’s motion.

Specifically, the trial court dismissed paragraph 4(b) of the Appellees’

negligence claim alleging that Liter’s had negligently and carelessly designed its

subdivision by using a land surveyor instead of a registered engineer.

Court of Appeals of Indiana | Opinion 39A05-1408-PL-401 | February 5, 2016   Page 7 of 28
Nevertheless, the trial court declined to dismiss paragraph 4(e) wherein the

Appellees had claimed that Liter’s had negligently designed its subdivision in a

manner that would lead to an increased drainage burden upon the Appellees’

Property.


The only remaining claims at the time of trial were: (1) Liter’s trespass claim

regarding the eaves of Bennett’s roof encroaching its property; (2) the

Appellees’ nuisance claim with respect to the spite fence; and (3) the Appellees’

negligence claim alleging that:

        4. [Liter’s] . . . had negligently and carelessly designed its subdivision
        in the following particulars:

        ****
        c. Designed a subdivision and ponding system where surface water
        will be collected into a body and discharged into the [Appellees’
        Property];
        d. Designed and created a nuisance by creating a private pond or a
        common private pond;
        e. Designed and created a subdivision that will increase drainage
        burden upon lower land owners including the [Appellees]; and
        f. Failed to use their own property so as not to cause unnecessary
        injury to [Appellees’ Property].

        5. As a proximate result of the negligence [] the [Appellees’ Property]
        has been seriously devalued and will be subject to flooding and
        destruction . . . .

(Appellant’s App. p. 234).


A six-day jury trial was held from July 22-July 28, 2014. With regards to the

trespass claim, at time of trial, the satellite dish had been removed, but the eaves

of Bennett’s roof remained. The Appellees’ sole defense to the trespass claim

Court of Appeals of Indiana | Opinion 39A05-1408-PL-401 | February 5, 2016           Page 8 of 28
was that they had acquired the portion encroached upon through a prescriptive

easement. Liter’s offered unrebutted evidence that the value of its property had

been reduced, thereby incurring a loss of $18,000. At the close of the evidence,

Liter’s moved for a directed verdict on its claim but was denied.


On the nuisance issue, Bennett stated that he came home sometime in February

2007 to find a chain link fence erected on the boundary line between the two

properties. Bennett indicated that it made him feel like he was being punished

for rejecting Liter’s propositions. Bennett’s wife testified that looking through

their window felt like they were in prison. Bennett acknowledged that Liter’s

took down the fence sometime in August of 2007. Liter’s defense was that it

put up the fence to establish the property line between the two properties.


With regards to the Appellees’ negligence claim, much of the arguments were

centered on the design scale that Blankenbeker had employed in constructing

the basin. The Appellees presented evidence of Robert Isgrigg (Isgrigg), an

engineer who evaluated Blankenbeker’s design. Isgrigg stated that a rational

method is employed to calculate the dimension of the basin. 5 Isgrigg pointed




5
  According to the HERPICC Stormwater Drainage Manual (the Manual), the formula for the rational
method is stated as Q=CIA—where Q is the peak discharge of the storm water in cubic feet per second; C is
the ratio of peak runoff rate (runoff coefficient); I is the rainfall intensity; and A is the contributing area in
acres.

Court of Appeals of Indiana | Opinion 39A05-1408-PL-401 | February 5, 2016                            Page 9 of 28
out that the runoff coefficient factor utilized by Liter’s surveyor, Blankenbeker,

was too high and due to that, it led to the construction of a small detention

basin. Isgrigg argued that the use of a lower coefficient would have resulted in

the construction of an adequate detention basin. According to the final plat

submitted to the Commission in 2007, Blankenbeker indicated that the size of

the detention basin to be constructed would be 34,500 cubic feet. Isgrigg stated

that during his site visit on September 19, 2008, he measured the detention

basin and found that it to be 20,000 cubic feet. According to Isgrigg, an

adequate detention basin should have been around 50,000 cubic feet.


In addition, Isgrigg stated that the final plat showed “a 24-inch diameter culvert

I believe [] under the entrance driveway on Highway 62. There is no culvert.

They didn’t put it in. So what happens if they’ve got uh . . . 300 feet of curve,

streets, curved gutters, rain gutters flowing down to [the Appellees’] driveway

entrance on Highway 62. . . . The water dumps into that intersection.” (Tr. p.

666). During wet months, Isgrigg stated that the area would receive about “half

an inch to an inch rainfall [], three or four times a month.” (Tr. p. 663).

Because the detention basin was too small, Isgrigg believed that the basin would

fill up faster and that there would be an accelerated discharge of surface water

from the Liter’s Property which would, in turn, cause erosion and flooding on

the Appellees’ Property.


The Appellees also retained a contractor, Scott Best (Best), who testified over

Liter’s objection that based on his experience, the detention basin seemed to be

“small for the amount of property that we are dealing with” but admitted that

Court of Appeals of Indiana | Opinion 39A05-1408-PL-401 | February 5, 2016   Page 10 of 28
he was not a hydrologist or surveyor, and had not performed any calculations

on which to base his opinion. (Tr. p. 781). The record shows that part of

Liter’s drainage system consisted of twenty-five drain pipes. Out of the twenty-

five, nineteen drained into the detention basin and the remaining six drained

away from the basin. Best stated that he observed several curb drains which he

described as “an inlet box that is on or in a roadway that catches all the water

that comes down the road.” (Tr. p. 773). According to Best, there was “a pipe

[] taking water from the curb drains” and directly emptying out on the

Appellees’ Property. (Tr. p. 775). Best indicated that said pipe was located

about ten to fifteen feet from Bennett’s house.


During cross-examination, Best clarified that the drain pipes did not end and

empty out on Appellees’ Property as earlier stated on direct, but they sat, ended

and drained on the Liter’s Property. Best also admitted that he did not conduct

any topography review to see which path the water travels after leaving the

drain pipes. Additionally, Best stated that on the day he visited the Liter’s

Property sometime in June 2013, the detention basin was empty and there was

no water feeding through the pipes. Also, Best stated there was no standing

water in the Appellees’ driveway culvert, Bennett’s house was still standing,

and there was no visible damage to Bennett’s residence.


Blankenbeker testified that the purpose of a detention basin was to “hold back

the water and let it out slowly,” with the goal being “to let it out at the same

rate that it occurred before the development occurred.” (Tr. p. 868).

Blankenbeker explained that the detention basin was designed to collect the

Court of Appeals of Indiana | Opinion 39A05-1408-PL-401 | February 5, 2016   Page 11 of 28
storm water accumulations from the Liter’s Property and the water was to be

channeled through a weir structure, and then into a concrete swale running

parallel to the boundary line between the two properties. From the swale, the

water was intended to diffuse into the Appellees’ existing twelve-inch culvert

and flow out through Highway 62.


Blankenbeker contended that in his twenty-four years of designing residential

subdivisions, he had never utilized a low coefficient as that suggested by

Isgrigg. In support of Blankenbeker’s design, Liter’s presented the testimony of

a civil engineer, Bernard Hauersperger (Hauersperger), who found the runoff

coefficient factor applied by Blankenbeker to be sensible. Hauersperger further

testified that during his site visit, he inspected the detention basin and he

determined it adequate for the sixty-three lots in Jefferson Manor, Phase II.

During cross-examination, Hauersperger acknowledged that there was

“ponding of water at the outlet end” of the Appellees’ driveway culvert. (Tr. p.

927). He also acknowledged that “if this subdivision is fully built out [] more

water will be draining onto the [Appellees’ Property] than it did prior to the

development.” (Tr. p. 927). Despite Isgrigg’s assertion that one of the pipes

directly drained into the culvert, on redirect, Hauersperger explained the pipe

that drained close to the Appellees’ driveway culvert first drained into a swale.

He further stated that the swale “would hold quite a bit of water . . . you could

call it a detention facility given that the driveway pipe . . . has a restriction on

the end of it. I believe it has an eight-inch [] pipe on the end of the culvert.”

(Tr. p. 930). Because there was a restriction on the tail end of the culvert, it


Court of Appeals of Indiana | Opinion 39A05-1408-PL-401 | February 5, 2016   Page 12 of 28
caused water to slowly discharge from the culvert and flow out into Highway

62.


Bodine testified that the construction at the Liter’s Property began sometime in

2008. At the time of the current trial, out of the sixty-three lots, only six lots

had been developed. Bodine stated that “we’ve got erosion . . . underneath the

driveway where one of the [] storm drains comes across our property [].” (Tr.

pp. 798-99). Bennett testified that before Liter’s broke ground in 2008, they had

never experienced water backing up “right on the brick” of his house. (Tr. p.

806). Bennett indicated that the flooding occurred at least “two or three times a

year.” (Tr. p. 806). Bennett stated that he would use a bush hog to mow the

grass in the depression amid the two Properties, but a ditch had formed due to

erosion. In addition, Bennett claimed that during a three-inch rainstorm, water

would canal into one of the drain pipes that was situated about sixty feet behind

his house. 6 He indicated that the water would then channel through the swale,




6
  Conflicting evidence was presented as to how close that pipe was situated to Bennett’s house. At trial, Best
testified that the said pipe was approximately ten to fifteen feet from Bennett’s home. Isgrigg testified that the
pipe was “roughly about [seventy-five feet],” whereas Bennett stated that the pipe was about sixty feet from
his home. (Tr. p. 665).



Court of Appeals of Indiana | Opinion 39A05-1408-PL-401 | February 5, 2016                          Page 13 of 28
but because the water was substantial, it would rise, overflow to his property,

and backup behind his house.


Additionally, the Appellees presented testimony of a licensed appraiser,

Katherine Love (Love), who stated that she visited the Appellees’ Property on

January 3, 2011. Love stated that while conducting her survey, she explored

the Property and looked exhaustively at the surroundings. Love admitted that

there were no drainage issues nor did she observe erosion on the Appellees’

Property. Love stated as of January 2011, the value of the Appellees’ Property

was $217,000. Over Liter’s objection, Love was permitted to testify that the

value of Appellees’ Property would diminish in light of Liter’s inadequate

detention basin and also on the backdrop of some speculative flooding that

would occur at least three times a year. Specifically, Love stated that the

Appellees’ Property would be devalued if it flooded three times a year, and that

the Appellees would suffer damages of $134,500; therefore the new value of

their Property would be $82,500. During cross-examination, Love

acknowledged that she had not observed any destruction, and that her opinion

on the Appellees’ Property lessening in value was based on mere speculation.


After six days of jury trial and close to nine hours of deliberations, the jury

found for Liter’s on its trespass claim but awarded no damages. On the

nuisance claim, the jury found for the Appellees’ but also awarded no damages.

As for the Appellees’ negligence claim, the jury found for the Appellees,

awarding court costs and attorney’s fees and directing Liter’s to “make



Court of Appeals of Indiana | Opinion 39A05-1408-PL-401 | February 5, 2016   Page 14 of 28
necessary repairs to [the] drainage []. This will prevent any and all future

flooding to [the Appellees’ Property].” (Appellant’s App. p. 26).


The trial court accepted the verdicts for the trespass and nuisance claims, but

declined to accept the verdict on negligence, stating that it was inconsistent.

Specifically, the trial stated that the Appellees had not sought court costs and

attorney’s fees; as such, the award was inconsistent pursuant to Indiana Code

section 34-51-2-13—providing, in part, that whenever a jury returns verdicts in

which the ultimate amount awarded is inconsistent with its determinations of

total damages and percentages of fault, the trial court shall inform the jury of

such inconsistencies, and order it to resume deliberations to correct its verdict.

Accordingly, the trial court directed the jury to reconsider it negligence verdict,

and it provided the jurors with new verdict forms to guide its determination.

Following the conclusion of those deliberations, the jury returned a verdict in

favor of the Appellees, awarding damages of $51,150 each to Bennett and

Bodine. On August 25, 2014, the trial court entered an order consistent with

the jury verdicts.


Liter’s now appeals. Additional information will be provided as necessary.

                               DISCUSSION AND DECISION

                                  I. Common Enemy Doctrine

The Appellees advanced a negligence claim against Liter’s on the grounds that

Liter’s negligently designed the subdivision “in such a manner that runoff

water” from the Liter’s Property will discharge and flood the Appellees’

Court of Appeals of Indiana | Opinion 39A05-1408-PL-401 | February 5, 2016   Page 15 of 28
Property. (Appellant’s App. p. 233). In arguing that it had no duty to the

Appellees, Liter’s claims that the construction of a drainage system on its

property was an effort to protect its own property from the accumulation of

surface waters and that the common enemy doctrine protects it from incurring

any liability.


We note this is an appeal from a jury trial, and “when reviewing the sufficiency

of evidence in a civil case, we determine whether there is substantial evidence of

probative value supporting the judgment. Jamrosz v. Resource Benefits, Inc., 839

N.E.2d 746, 758 (Ind. Ct. App. 2005), trans. denied. We do not weigh the

evidence or judge the credibility of witnesses but consider only the evidence

most favorable to the judgment along with all reasonable inferences to be drawn

therefrom. Davidson v. Bailey, 826 N.E.2d 80, 87 (Ind. Ct. App. 2005). We

affirm unless the judgment “is against the great weight of the evidence.” Id.


In Argyelan v. Haviland, 435 N.E.2d 973, 975 (Ind. 1982), our supreme court

stated:

          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.

In Bulldog Battery Corp. v. Pica Investments, Inc., 736 N.E.2d 333, 339 (Ind. Ct.

App. 2000), we clarified that under the common enemy doctrine of water

diversion, it is not unlawful for a landowner to improve his land in such a way

Court of Appeals of Indiana | Opinion 39A05-1408-PL-401 | February 5, 2016          Page 16 of 28
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. An owner of land has the right to occupy and

improve it in such manner and for such purposes as he may see fit including

changing the surface or by erecting buildings thereon. Argyelan, 435 N.E.2d at

976.


An exception to the common enemy doctrine exists where an owner of land, by

artificial means, throws or casts water onto his neighbor in unusual quantities

so as to amplify the force at a given point or points. Id. Furthermore, we note

that the common enemy doctrine applies only to surface water, and not to a

natural watercourse. Long v. IVC Indus. Coatings, Inc., 908 N.E.2d 697, 702 (Ind.

Ct. App. 2009). “Surface water” has been defined as “[w]ater from falling rains

or melting snows which is diffused over the surface of the ground or which

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

. . .” Kramer v. Rager, 441 N.E.2d 700, 705 (Ind. Ct. App. 1982). Finally, we

note that the common enemy doctrine may apply regardless of the form of

action brought by the plaintiff, that is, regardless of whether the plaintiff asserts

his claims as an action for negligence, trespass, or nuisance. Bulldog Battery




Court of Appeals of Indiana | Opinion 39A05-1408-PL-401 | February 5, 2016   Page 17 of 28
Corp., 736 N.E.2d at 339; Luhnow v. Horn, 760 N.E.2d 621, 632 (Ind. Ct. App.

2001).


In Argyelan, the defendants erected a commercial building upon their lot, which

was adjacent to the plaintiff's residential lot. Argyelan, 435 N.E.2d at 974. As

part of the improvement to the lot, the defendants also erected downspouts

directed toward the property line and paved a substantial portion of the lot. Id.

at 975. Following completion of these improvements, the plaintiffs complained

that surface water was draining from the defendants’ property and pooling on

their property, causing damage. Id. The defendants then erected a six-inch

curb or retaining wall along the property line. Id. In a sustained rain, water

would accumulate behind the curb and eventually flow over it onto the

plaintiffs’ property. Id. The supreme court held that the defendants were not

liable to the plaintiffs for damage caused by the overflowing surface water

pursuant to the common enemy doctrine because there was no showing that the

defendants had, by artificial means, conducted the water in unusual quantities

by new channels onto particular parts of the plaintiffs’ land. Id. at 976. In so

holding, the court stated that the fact that “water was once impounded or

channeled [via downspouts] can be of no moment if it is diffused to a general

flow at the point of entering the adjoining land.” Id.


The Appellees now argue that the combination of having a drainage pipe that

drained closely behind Bennett’s house and another that drained into their

driveway culvert, coupled with the construction of an undersized detention

basin, caused surface water from the Liter’s Property to diffuse at a greater

Court of Appeals of Indiana | Opinion 39A05-1408-PL-401 | February 5, 2016   Page 18 of 28
speed, intensity, and volume than before. In this regard, the Appellees argue

that the facts place this case squarely within the exception to the common

enemy doctrine—providing that the rule does not apply where an owner of land

has, by artificial means, thrown or cast water onto his neighbor in unusual

quantities so as to amplify the force at a given point or points. See Argyelan, 435

N.E.2d at 976. 7


With regards to the size of the detention basin, Liter’s stated that according to

the final plat submitted to the Commission in 2007, the detention basin was

34,500 cubic feet. Liter’s constructed a detention basin measuring 20,000 cubic

feet. The Appellees argued that an adequate detention basin should have been

50,000 cubic feet. In addition, the Appellees’ retained contractor testified over

Liter’s objection that based on his experience, the detention basin seemed to be

“small for the amount of property that we are dealing with” but admitted that




7
  The Appellees acknowledge the rule espoused in Argyelan; however, they point out in a footnote that they
agree with the dissent in Argyelan and further state that “Indiana should adopt the rule of reasonable use or a
modified version of the common enemy doctrine.” (Appellees’ Br. p. 9). We initially note that we
abandoned the common enemy doctrine in favor of a different rule called the “rule of reasonable use” in
Rounds v. Hoelscher, 428 N.E.2d 1308 (Ind. Ct. App. 1981). However, “our supreme court promptly pinned
our ears back and reasserted the common enemy doctrine as the law in Indiana in Argyelan.” Pickett v. Brown,
569 N.E.2d 706, 708 (Ind. Ct. App. 1991), trans. denied. Therefore, we respectfully decline the Appellees’
invitation to reverse supreme court precedent.

Court of Appeals of Indiana | Opinion 39A05-1408-PL-401 | February 5, 2016                       Page 19 of 28
he was not a hydrologist or surveyor, and had not performed any calculations

on which to base his opinion. (Tr. p. 781).


As for drainage pipes, Liter’s drainage system comprised twenty-five drain

pipes. Out of the twenty-five, nineteen drained into the detention basin and the

remaining six drained away from the basin. The Appellees averred that one of

those the pipes was located about ten to fifteen feet from Bennett’s house, and

that surface water would feed through that pipe and empty on their property.

Refuting the Appellees’ claim, Liter’s argued that despite the existence of that

pipe, surface water would first drain into a swale, the swale would then hold the

water momentarily before draining into the Appellees’ driveway culvert.


As noted previously, 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. Long, 908 N.E.2d at 702 (quoting Argyelan, 435 N.E.2d at

976). In order to impose liability for surface water discharge, it must be

collected on the Liter’s Property and cast off in concentrated volumes onto the

Appellees’ Property. See Argyelan, 435 N.E.2d at 975. More importantly, the

distinction lies in the character of the flow as it enters the adjoining property.


“Whether surface water is collected and cast upon neighboring land as a body

or collected but diffused before entering neighboring property will be largely a


Court of Appeals of Indiana | Opinion 39A05-1408-PL-401 | February 5, 2016   Page 20 of 28
question of fact.” Bulldog Battery Corp., 736 N.E.2d at 340. In the present case,

it was the jury’s role to determine whether, in light of the evidence before it,

Liter’s detention basin and drainage system collected water and cast it upon the

Appellees’ Property in unusual quantities so as to increase the force with which

it entered onto the property at specific points. Considering the evidence most

favorable to the verdict, as we are required to do, the evidence presented

showed that the Liter’s Property had a gradual fall of about 1-2%. Originally,

surface water from the Liter’s Property would traverse through a depression

amidst the two properties and flow into the Appellees’ existing driveway culvert

and flow out under Highway 62. The Appellees argued that before Liter’s

improved its Property, they had never experienced flooding. Specifically,

Bennett testified that before Liter’s broke ground in 2008, he had never

experienced water backing up “right on the brick” of his house. (Tr. p. 806).

Also, Bodine stated that “we’ve got erosion . . . underneath the driveway where

one of the [] storm drains comes across our property [].” (Tr. pp. 798-99).

Furthermore, Bennett stated that during a three-inch rainstorm, water would

canal into one of the drain pipes that was situated closely behind his house and

into the swale; however, since the amount of water was substantial, it would

rise, overflow to its property and, backup behind his house. In addition, the

jury was also presented with photographs and diagrams illustrating Liter’s

detention basin and drainage system; some of the photographs showed standing

water, some did not.




Court of Appeals of Indiana | Opinion 39A05-1408-PL-401 | February 5, 2016   Page 21 of 28
Admittedly, there was a lot of conflicting evidence offered by both parties.

Some witnesses testified in a manner favorable to Liter’s and others favorable to

the Appellees. However, as the reviewing court, we respect the jury’s exclusive

province to weigh conflicting evidence. See Davidson, 826 N.E.2d at 87. From

the evidence of the case—though not free from conflict—the jury reasonably

determined that the construction of Liter’s undersized basin led to the casting

off of surface water in concentrated volumes onto the Appellees’ Property. In

this regard, we find that the common enemy doctrine does not preclude the

Appellees’ claim of negligence against Liter’s, and we affirm the trial court.


                                II. Admission of Expert Testimony


Liter’s next argues that the trial court abused its discretion in allowing the

Appellees’ expert witness, Love, a licensed appraiser, to render opinion

testimony regarding the diminution of the Appellee’s Property upon a

speculative flooding event. Specifically, Liter’s argues that Love’s testimony

regarding the Appellees’ Property reducing in value was based on “pure

guesswork and speculation.” (Appellant’s Br. p. 26).


The admissibility of expert testimony is guided by Indiana Evidence Rule 702,

which provides:

        (a) If scientific, technical, or other specialized knowledge will assist the
        trier of fact to understand the evidence or to determine a fact in issue, a
        witness qualified as an expert by knowledge, skill, experience, training,
        or education, may testify thereto in the form of an opinion or
        otherwise.



Court of Appeals of Indiana | Opinion 39A05-1408-PL-401 | February 5, 2016       Page 22 of 28
        (b) Expert scientific testimony is admissible only if the court is satisfied
        that the scientific principles upon which the expert testimony rests are
        reliable.


A witness must be qualified as an expert by his knowledge, skill, experience,

training, or education and must have sufficient skill in a particular area before

he may offer opinions in that area. Armstrong v. Cerestar USA, Inc., 775 N.E.2d

360, 366 (Ind. Ct. App. 2002), trans. denied. The proponent of the expert

testimony has the burden of establishing the foundation and reliability of the

scientific principles on which the testimony is based. Hannan v. Pest Control

Servs., Inc., 734 N.E.2d 674, 679 (Ind. Ct. App. 2000), trans. denied. The trial

court acts as a gatekeeper by preliminarily assessing whether the reasoning or

methodology underlying the testimony is scientifically valid and can properly

be applied to the facts in issue and by ensuring the testimony both rests on a

reliable foundation and is relevant. Armstrong, 775 N.E.2d at 366. In other

words, the trial court is to control the admission of proffered expert testimony

rather than admitting what is offered and leaving it to the jury to determine the

weight of the testimony. Norfolk S. Ry. Co. v. Estate of Wagers, 833 N.E.2d 93,

101 (Ind. Ct. App. 2005), trans. denied. Expert testimony admitted under Rule

702 requires more than a subjective belief or unsupported speculation.

Armstrong, 775 N.E.2d at 366. It “must be supported by appropriate validation

or good grounds based on what is known . . . .” Lytle v. Ford Motor Co., 814

N.E.2d 301, 309 (Ind. Ct. App. 2004), trans. denied.




Court of Appeals of Indiana | Opinion 39A05-1408-PL-401 | February 5, 2016        Page 23 of 28
The record shows that, in January 2011, at the request of the Appellees, Love, a

certified appraiser, performed a survey of the Appellees’ Property. Love

indicated that her survey involved an exhaustive exploration of the Property

and its surroundings. Love admitted that there were no drainage issues at the

time nor did she observe erosion. Love indicated that as of January 2011, the

fair market value of the Appellees’ Property was $217,000. Love then

responded to a hypothetical question where she stated that based on her years

of experience as an appraiser, and in light of Liter’s undersized basin, and upon

the happening of a flooding event occurring at least three times a year, the

Appellees’ Property would diminish in value. Specifically, Love stated that the

Appellees’ Property would suffer estimated damages of $134,500. During

cross-examination, Love acknowledged that she had not observed any

destruction in 2011, and that her opinion was based on speculation.


“Although it has been said that an expert witness must have observed facts

sufficient to enable him to form a valid opinion, those facts may be supplied in

the form of a hypothetical question which incorporates facts previously adduced

at the trial.” Fulton Cnty. Comm’rs v. Miller, 788 N.E.2d 1284, 1286 (Ind. Ct.

App. 2003). Here, we find ample evidence in the record to provide a factual

basis for the hypothetical situation on which Love’s opinion was based.

Bennett testified that following the development of the subdivision, water

would lap up against his house approximately two to three times a year. He

also indicated that the Property has experienced erosion at specific points. In

addition, the Appellees presented evidence through its engineer, Isgrigg, that an


Court of Appeals of Indiana | Opinion 39A05-1408-PL-401 | February 5, 2016   Page 24 of 28
adequate detention basin should have been around 50,000 cubic feet, but Liter’s

had constructed a 20,000 cubic feet detention basin. Also, Isgrigg stated that

the result of the undersized basin led to an accelerated discharge of surface

water from the Liter’s Property. Furthermore, Isgrigg pointed out that the

accelerated discharge of surface water would cause erosion.


While Love did not observe any flooding or damage on the Liter’s Property

during her visit in 2011, her expert testimony was sufficiently tied to the facts of

the case and was not unreasonable or outside the scope of the evidence. See

Armstrong, 775 N.E.2d at 366. Accordingly, we find that based upon the facts

and circumstances herein, the trial court did not abuse its discretion in

admitting Love’s testimony.


                                             II. Damages

Liter’s also argues that the jury’s award of zero dollars to its trespass claim was

inadequate in light of the evidence. Liter’s argues that this cause should be

remanded to the trial court for the award of damages or, in the alternative,

remanded with instructions for the trial court to grant permanent injunctive

relief requiring the Appellees to remove the unpermitted portion of Bennett’s

roof that extends over its property.


When we review a jury’s damage award that the appellant claims is inadequate,

we apply a strict standard. Ritter v. Stanton, 745 N.E.2d 828, 843 (Ind. Ct. App.

2001), trans. denied. Specifically, we “consider only the evidence that supports

the award together with the reasonable inferences therefrom.” Id. “If there is


Court of Appeals of Indiana | Opinion 39A05-1408-PL-401 | February 5, 2016   Page 25 of 28
any evidence to support the amount of the award, even if it is conflicting, this

court will not reverse.” Id. This standard reflects the premise that damages

“are particularly a jury determination.” Sears Roebuck and Co. v. Manuilov, 742

N.E.2d 453, 462 (Ind. 2001). Therefore, we do not substitute our “idea of a

proper damage award for that of the jury.” Id. (quoting Prange v. Martin, 629

N.E.2d 915, 922 (Ind. Ct. App. 1994), trans. denied). Because appellate courts

are unable “to actually look into the minds of the jurors, . . . .we will not reverse

if the award falls within the bounds of the evidence.” Sears Roebuck, 742 N.E.2d

at 462 (citation omitted); see also Russell v. Nuemann–Steadman, 759 N.E.2d 234,

237 (Ind. Ct. App. 2001) (stating, “[t]he trial court may only reverse a jury

verdict ‘when it is apparent from a review of the evidence that the amount of

damages awarded by the jury is so small or so great as to clearly indicate that

the jury was motivated by prejudice, passion, partiality, corruption or that it

considered an improper element.’”) (citation omitted).


The record demonstrates that after Liter’s conducted a boundary survey of its

Property, it became apparent that the eaves of Bennett’s roof extended over its

Property by two feet. Liter’s also claimed that Bennett’s satellite dish was

rooted on its property. In the Compliant, Liter’s sought permanent injunctive

relief requiring the Appellees to remove the unpermitted encroachments, and

the award of treble damages due to the continuing trespass. At trial, Liter’s

presented unrebutted evidence that its property had been devalued by $18,000

as result of Bennett’s roof extending to it property. We note that a jury is

presumed to have followed the court’s instructions. Prange, 629 N.E.2d at 922.


Court of Appeals of Indiana | Opinion 39A05-1408-PL-401 | February 5, 2016   Page 26 of 28
The jury was instructed that it could award Liter’s damages that resulted from

the trespass. After deliberations, the jury found that Liter’s had substantiated its

trespass claim, but was not entitled to damages of any kind. Also, the jury

found for the Appellees on its nuisance claim but all the same denied it

damages.


The Appellees briefly argue that “[n]owhere did Liter’s offer an objection to the

jury verdict of no damages on the trespass count, and thereby waived the error,

if any.” (Appellees’ Br. p. 17). Although not specifically mentioned by the

Appellees, we note that Liter’s did not file a motion to correct error after the

jury verdict. Under the Indiana Rule 59(A)(2), a motion to correct error is

prerequisite to appeal when a party seeks to address a claim that a jury’s verdict

is excessive or inadequate. Here, Liter’s did not file a motion to correct error,

and its argument that we should review the award of zero dollar damages as

being inadequate, is waived on appeal.


At the very least, Liter’s seeks that we remand this cause for the issuance of a

permanent injunction. We note that permanent injunctions are limited to

prohibiting injurious interference with rights and must be narrowly tailored so

that its scope is not more extensive than is reasonably necessary to protect the

interests of the party in whose favor it is granted. Plaza Grp. Props., LLC v.

Spencer Cnty. Plan Comm’n, 877 N.E.2d 877, 881 (Ind. Ct. App. 2007), See also

Soc. Serv. v. Hospitality House, 704 N.E.2d 1050, 1061 (Ind. Ct. App. 1998). “A

trial court may issue an injunction in order to prevent a continued trespass.”

Ballard v. Harman, 737 N.E.2d 411, 417 (Ind. Ct. App. 2000).

Court of Appeals of Indiana | Opinion 39A05-1408-PL-401 | February 5, 2016   Page 27 of 28
At the time of the current trial, Liter’s had removed the spite fence; however,

the Appellees had not removed the eaves of the roof that extended to Liter’s

Property. Here, we find that the continued existence of the Appellee’s roof

extending to Liter’s property would involve a continuing trespass. According,

injunctive relief is the appropriate remedy on remand. Therefore, we remand to

the trial court with instructions for the issuance of a permanent injunction

requiring the Appellees to remove the unpermitted portion of Bennett’s roof

that extends over Liter’s Property.


                                         CONCLUSION

In light of the foregoing, we conclude that: (1) the common enemy doctrine

does not preclude the Appellees’ negligence claim; (2) there was no abuse of

discretion in admitting Love’s testimony; and (3) Liter’s argument that the

jury’s award of zero damages is inadequate is waived on appeal; however,

because there is continuing trespass, we remand to the trial court with

instructions for the issuance of a permanent injunction.


Affirmed, but remanded with instructions for the issuance of a permanent

injunction with respect to the continuing trespass.


Bailey, J. and Barnes, J. concur




Court of Appeals of Indiana | Opinion 39A05-1408-PL-401 | February 5, 2016   Page 28 of 28
