enemy doctrine in Indiana

2016Argyelan, 435 N.E.2d at 976 . [3-5] [30] 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.

2011The common enemy doctrine, which is explained in greater detail below, generally 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 that best suits his own convenience.” Argyelan v. Haviland, 435 N.E.2d 973, 975 (Ind.1982).

2011Trowbridge v. Torabi, 693 N.E.2d 622, 627 (Ind.Ct.App.1998).

2003Trowbridge v. Torabi, 693 N.E.2d 622 (Ind.Ct.App.1998), trans. demied. - The common enemy doctrine protects those who erect obstructions only where the obstruction affects surface water.

2016Bulldog Battery Corp., 736 N.E.2d at 339 ; Luhnow v. Horn, 760 N.E.2d 621, 632 (Ind.Ct.App.2001). [31] In Argyelan , the defendants erected a commercial building upon their lot, which was adjacent to the plaintiffs residential lot.

2005"Thus, under the common enemy doctrine of water diversion, it is not unlawful for a landowner to improve his land in such a manner as to accelerate or increase the flow of surface water by limiting or eliminating ground absorption or by changing the grade of the land." Luhnow v. Horn, 760 N.E.2d 621, 631 (Ind.Ct.App. 2001).

2016However, "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.

2016However, "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.

2018In addition, the Trust proposed the finding that "erosion was produced on the Young [property] which was detrimental to the [Trust property], an adjacent property." App. Vol. II p. 51. [13] As discussed in the previous section, however, the common enemy doctrine only applies to "surface water." We would also reiterate that "surface water" has been defined as water from "falling rains" or "melting snow." Bulldog Battery Corp. , 736 N.E.2d 333 , 339 (Ind. Ct. App. 2000).

2016Such sanctioned dealings include walling it out, walling it in and diverting or accelerating its flow by any means whatever. [29] In Bulldog Battery Corp. v. Pica Investments, Inc., 736 N.E.2d 333 , *295 339 (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 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 c

2013See Romine v. Gagle, 782 N.E.2d 369, 381 (Ind. 2003) (referring to a natural surface watercourse as one through which water regularly, though not constantly, flows along and through an identifiable and more or less permanent course, which includes among its features a bed where a natural stream of water runs.) 7 prohibits a lower landowner from blocking or obstructing the natural flow of the water through the watercourse and as such, the common enemy doctrine is inapplicable.

2013Id.

2009See, eg., Wells v. State Highway Comm'n, 503 S.W.2d 689, 692-693 (Mo.1973) (holding that the jury could find that the enormous content of mud (with water) discharged from the defendant's site and deposited into the plaintiff's lake over an extended period of time was not *707 classified as a discharge of surface water); see also McIntyre v. Guthrie, 596 N.E.2d 979, 982-983 (Ind.Ct.App.1992) (holding that landowner's alleviation of a surface water problem affected a watercourse and that the impact on the watercourse was not minimal, so the common enemy doctrine did not apply), trans. denied.

2000McIntyre v. Guthrie, 596 N.E.2d 979, 982 (Ind.Ct.App.1992), trans. denied.

1998This court, quoting from Capes v. Barger, 123 Ind.App. 212, 214-15 , 109 N.E.2d 725, 726 (1953), defined the term “surface water”, distinguished it from a natural watercourse, and discussed the applicability of the common enemy doctrine, stating: Water 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 *627 but which has no definite banks or channel, is surface water.

1998This court, quoting from Capes v. Barger, 123 Ind.App. 212, 214-15 , 109 N.E.2d 725, 726 (1953), defined the term “surface water”, distinguished it from a natural watercourse, and discussed the applicability of the common enemy doctrine, stating: Water 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 *627 but which has no definite banks or channel, is surface water.

2013Id.

1998In Gasway, 526 N.E.2d at 1201 (citations omitted), this court/discussing an issue pertaining to a natural watercourse, stated: Water flowing in a defined channel or watercourse is not surface water and the common enemy doctrine is inapplicable.

1992Birdwell v. Moore (1982), Ind.App., 439 N.E.2d 718 (landowner not liable to neighbor where clearing of debris and repairing soil erosion did not increase the amount of water in the watercourse); Lowe v. Loge Realty Co. (1966), 138 Ind.App. 434 , 214 N.E.2d 400 (upper landowners not liable for diverting surface water into natural watercourse where such diversion did not increase the volume, intensity and force of the discharge through the watercourse); Smith v. Atkinson (1962), 133 Ind.App. 430 , 180 N.E.2d 542 (upper landowner not liable to lower proprietor for damage caused when evidence show

1992Birdwell v. Moore (1982), Ind.App., 439 N.E.2d 718 (landowner not liable to neighbor where clearing of debris and repairing soil erosion did not increase the amount of water in the watercourse); Lowe v. Loge Realty Co. (1966), 138 Ind.App. 434 , 214 N.E.2d 400 (upper landowners not liable for diverting surface water into natural watercourse where such diversion did not increase the volume, intensity and force of the discharge through the watercourse); Smith v. Atkinson (1962), 133 Ind.App. 430 , 180 N.E.2d 542 (upper landowner not liable to lower proprietor for damage caused when evidence show

1982In Argyelan, supra, the common enemy doctrine and its exception for collected channeled waters were strictly applied to the facts and since no water was found to have been collected, discharged, or concentrated specifically, the court found no liability even though, as Judge Sullivan points out in his dissent, the trial court had found the water came over the wall like a waterfall and created a flooding problem which had never existed before.” Id. at 1315.

1982In Argyelan, supra, the common enemy doctrine and its exception for collected channeled waters were strictly applied to the facts and since no water was found to have been collected, discharged, or concentrated specifically, the court found no liability even though, as Judge Sullivan points out in his dissent, the trial court had found the water came over the wall like a waterfall and created a flooding problem which had never existed before." Id. at 1315.

2016Jamrosz v. Resource Benefits, Inc., 839 N.E.2d 746, 758 (Ind.Ct.App.2005), trans. denied.

2012“Although it may be inconsistent with the concept of being a ‘good neighbor,’ or a more laudable and generalized concept of the common good,” the majority reasoned, “under the common enemy doctrine, Crow-el is entitled to the additional, natural drainage of surface water afforded his land due to its location on the high end of the watershed, and he is not liable to his neighbors for any damage to their property resulting from that drainage.” Id. at 298 (citation omitted).

2011Kinsel v. Schoen, 934 N.E.2d 133, 139 (Ind.Ct.App.2010).

2011Kinsel, 934 N.E.2d at 139 .

2009See, eg., Wells v. State Highway Comm'n, 503 S.W.2d 689, 692-693 (Mo.1973) (holding that the jury could find that the enormous content of mud (with water) discharged from the defendant's site and deposited into the plaintiff's lake over an extended period of time was not *707 classified as a discharge of surface water); see also McIntyre v. Guthrie, 596 N.E.2d 979, 982-983 (Ind.Ct.App.1992) (holding that landowner's alleviation of a surface water problem affected a watercourse and that the impact on the watercourse was not minimal, so the common enemy doctrine did not apply), trans. denied.

2008Harlan Bakeries, Inc. v. Muncy, 835 N.E.2d 1018, 1033 (Ind.Ct.App.2005).

2008Davis v. City of Crawfordsville, 119 Ind. 1 , 21 N.E. 449, 449 (1889).

2008Davis v. City of Crawfordsville, 119 Ind. 1 , 21 N.E. 449, 449 (1889).

2000Id. at 32.

2000“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) (citations omitted) (quoting Capes v. Barger, 123 Ind.App. 212, 214-15 , 109 N.E.2d 725, 726 (1953)).