Author: Jamie B. Dameron (bio)
Phone: 317.464.1591
Email: jdameron@bamberger.com
It has long been the law in Indiana that surface water is a “common enemy.” Surface water drains from one property to another. We all have to deal with that inevitable force of nature, water flowing downhill, while we make improvements to land. Other water laws may require drainage permits or prevent certain activities impacting drainage on and off your property. Often though, it is the “common enemy doctrine” developed over centuries in courtrooms, that controls neighbor disputes over surface water drainage.
In general, the common enemy doctrine can allow one landowner to accelerate or increase the flow of surface water onto a downhill neighbor’s property. An uphill landowner can limit or even eliminate water absorbing in his ground, or change the overall grade of the property to the detriment of his neighbors. While this seems like a harsh doctrine, cases have also carved out various exceptions to the common enemy doctrine. Many exceptions involve a determination that someone first collected the water then “cast off” the water in concentrated volumes onto neighboring properties. The distinction between the allowed acceleration of surface flow versus the “casting off” in a concentrated volume can be difficult to determine. Like with other exceptions, unique facts define the circumstances of uphill neighbors going beyond the authority of the common enemy doctrine . Some downhill property owners have had success overcoming or side-stepping the common enemy doctrine under nuisance, trespass or negligence claims when:
- Surface water was first collected in an undersized drainage basin in a nearby subdivision;
- “Watercourse” laws apply instead of diffuse surface water related laws;
- Existing drains nearby were blocked;
- A berm was built along an adjacent ditch;
- Overflowing wetlands were created mainly by raising the level of groundwater;
- Flooding was caused by a leaking pond; and
- A wall was built on the drainage impaired property instead of on the uphill property.
There are other exceptions, and like these examples, each case is fact specific. Neighbors continue to disagree and the common enemy doctrine continues to develop with each new dispute brought into the courtroom. To avoid the time and expense of litigating complex water laws, a landowner, even one who “knows” she has the absolute right to improve her land and impact the surface water drainage, might think twice before acting without regard to those nearby. Some planning with your neighbors in advance could be the most practical route for solving drainage problems.
This article is intended for educational purposes only. By reading our blog, you understand there is no attorney-client relationship created between you and Bamberger, Foreman, Oswald & Hahn, LLP. It is not a substitute for legal advice from a licensed professional attorney in your state or jurisdiction. Please seek advice from an attorney before taking any legal action.
Bamberger, Foreman, Oswald & Hahn, LLP is located at 201 N. Illinois Street, Suite 1225, Indianapolis, IN 46204.
