Neighbor Lacks Case Despite ‘Havoc’ After Home Built On Higher Land


Dave Stafford for

While agreeing that water flowing from a neighbor’s property after the construction of a new home on higher ground “wreaks havoc” on the property below, a trial court’s decision that the owner of the lower ground has no right of action was affirmed Thursday by the Indiana Court of Appeals.

The dispute in N.G. Hatton Trust v. Robert D. Young and Ellen M. Young, 92A03-1708-PL-1818, arises from a case involving neighboring property on Shriner Lake in Whitley Country in northeast Indiana. The trust has owned a property next to the Youngs’ parcel since 1999. In 2006, the Youngs built a new house on their land further up a hill. They also raised ground on part of their property.

“During and after heavy rains, since the construction of the Youngs’ new home, water flows across their driveway before accumulating in a rock bed. The water then crosses the property line, causing damage to the Trust’s concrete sidewalk and stairs as it travels downhill to the lake. … In addition, fill, including rocks, mud, and sediment, from Young’s construction washed onto the Trust’s property,” Judge Cale Bradford wrote.

In 2011, the trust sued the Youngs, claiming negligence and/or negligence per se, which the Youngs denied. The Youngs also raised the common enemy doctrine that applies to surface water as an affirmative defense.

Whitley Superior Judge Pro Tem Brad Voelz ruled for the Youngs last year. He found that while water and sediment running from their property “wreaks havoc” on the trust’s land next door, it only occurs after heavy rains. Moreover, the Youngs were not “collecting, concentrating, and casting it in a body upon” the Trust’s property. Pursuant to the common enemy doctrine, the Youngs had no duty to construct their home in any different manner, therefore voiding any negligence claim by a trust. The trial court also rejected the trust’s argument that a violation of the zoning ordinance created a private right of action for negligence per se.

The Court of Appeals affirmed the trial court on both conclusions.

“We recognize that the application of the common enemy doctrine, in this case, may appear harsh. However, the law in this area is well-settled,” Bradford wrote, citing Argyelan v. Haviland, 435 N.E.2d 973, 977 (Ind. 1982). The firm defense of the common enemy doctrine noted in Argyelan holds that while the doctrine may inflict hardships, it’s also a well-understood precept that has continued to work satisfactorily if water continues to run downhill.

The panel quotes Argyelan: “Although courts should not be slow to respond to changing conditions, changes in the established law are not warranted simply because it is imperfect.”