Court orders portion of roof removed due to trespass

Jennifer Nelson for www.theindianalawyer.com

The Indiana Court of Appeals affirmed a jury verdict in a trespass and negligence lawsuit brought in a dispute over water draining from a housing development into neighboring property. In doing so, the judges ordered part of a roof to come down due to trespass.

Liter’s of Indiana purchased property next to that owned by Earl Bennett and his half-brother Daniel Bodine, where Bennett lived with his wife. The roof of Bennett’s home extended over his property line by two feet into the property owned by Liter’s, which it was developing in a residential neighborhood. Liter’s erected a “spite fence” made of chain link to mark its property and also constructed a basin on its property to collect water for drainage.

Liter’s sued Bennett and Bodine seeking to enjoin and recover damages for continuing trespass on its property; the defendants counterclaimed, alleging nuisance since Liter’s had erected the spite fence. They also alleged that the company had negligently designed its subdivision and that the post-development surface water runoff from the property would flood the defendants’ property.

A jury ruled in favor of Liter’s on its trespass claim, but awarded no damages. It found for the brothers on their nuisance claim, but also awarded no damages. The jury ruled in favor of the brothers on their negligence claim, awarded more than $51,000 to each brother.

“[U]nder 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. 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. More importantly, the distinction lies in the character of the flow as it enters the adjoining property,” Judge Patricia Riley wrote in Liter’s of Indiana, Inc. v. Earl E. Bennett and Daniel L. Bodine, 39A05-1408-PL-401.

“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.
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.”

The judges remanded to the trial court with instructions for the issuance of a permanent injunction requiring the brothers to remove the unpermitted portion of Bennett’s roof that extends over Liter’s property. The continued existence of the roof extending to the neighboring property is a continuing trespass, the court held.