March 1, 2011
On February 28, 2011, the Indiana Court of Appeals decided an issue of first impression: Can a landowner, who raises the subterranean water table on his land and creates a federally regulated wetland, may invoke the common enemy doctrine of water diversion and shield himself from liability to adjoining landowners whose property also became federally regulated wetlands? In
B&B, LLC v. Lake Erie Land Co., Case No. 45A04-1002-PL-18, the Court said, "No."
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In this case, one landowner sought to develop on a portion of its land. However, the land that it wanted to develop was a wetland. Therefore, the landowner raised the groundwater level in another portion of its land to have that land become a wetland in order to receive federal permission to develop its land. Raising the groundwater level also caused a neighbor's land to become a wetland subject to federal regulation. The neighbor sued for trespass, nuisance, and negligence. At a jury trial, the trial court granted judgment on the evidence to the defendant on all of the claims, concluding that they were barred by the common enemy doctrine, which 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.
On appeal, the Court concluded that the trial court erred because "the common enemy doctrine applies only to surface water." Surface water is "water from falling rains or melting snows that 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." Groundwater does not meet this definition. Therefore, the defendant could not take advantage of the common enemy doctrine.
Although the trial court determined that there was no evidence that the mitigation bank project had violated any applicable engineering standards, and no breach occurred in carrying out the creation of the wetland mitigation bank, LEL knew that raising the water table in excess of 591.5 feet could potentially flood neighboring properties. LEL was also warned that the mitigation bank would likely inundate B&B's land and its permit prevented it from injuring adjoining property owners. These facts notwithstanding, LEL increased the water level as part of its design criteria in order to sell more mitigation credits.
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Therefore, in addition to our conclusion that the common enemy doctrine does not bar B&B's cause of action against LEL, it is also apparent that B&B presented sufficient evidence in its case-in-chief that LEL undertook a duty and breached that duty by not stopping the propagation of wetland species that culminated in the establishment of the wetlands on B&B's parcel.
The Court also rejected the defendant's argument that it could only be found to have trespassed if some person was the object of the trespass. It noted that
Lever Bros. Co. v. Langdoc, 655 N.E.2d 577 (Ind. Ct. App. 1995), the entry of noxious material onto another's property could constitute a trespass.
Although we note that the seeds that migrated onto B&B's property are not "noxious materials" per se, they rendered B&B's property subject to federal regulatory criteria. And, as discussed above, once the plants migrated and took root, the B&B property "became worthless." Therefore, in accordance with Lever Bros., we reject LEL's contention that B&B failed to present any evidence of trespass.
There are two takeaways from this case. First, landowners cannot use the common enemy doctrine to excuse any intentional changes to groundwater levels. Second, a person can trespass on the land of another by causing a substance to enter the other's property, if that substance renders that property worthless, regardless of whether the substance is toxic.
Lessons:
- The common enemy doctrine applies to surface water and groundwater is not surface water.
- A trespass can occur when a person causes a substance to enter another's property, if that substance renders that property worthless, regardless of whether the substance is toxic.
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