Daily Development for
Monday, October 5, 1998

by: Patrick A. Randolph, Jr.
Professor of Law
UMKC School of Law
Of Counsel: Blackwell Sanders Peper Martin
Kansas City, Missouri

WATERS AND WATER RIGHTS; PONDS: A genuine issue of material fact may exist as to whether an area of water located on parts of two adjoining parcels constitutes surface water or is a pond or natural watercourse, and dramatically different results accrue depending upon the answer.

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

The pond in question had been formed originally by the construction of a dam on land belonging to the predecessor of Torabi. Water accumulated in the pond from springs and natural and artificial drainage. At that time, the neighboring property, later owned by Trowbridge, had no standing water, although it low lying, swampy ground, at least in part because of spillover from the adjacent dam. Later, a neighbor proposed to construct a residential subdivision on his land, and agreed with Torabi's predecessor to tear down the dam and build a new one on the neighbor's land, creating a large pond covering parts of both parcels.

The year after the new dam was built, Trowbridge acquired from the neighbor the subdivided parcel that included the new portion of the pond. Almost twenty years later, Torabi acquired the original pond parcel, which still contained most of the pond. To gain access to a remote part of his parcel, Torabi built a causeway across the pond, with a twelve inch culvert. This substantially reduced the size of the pond on Trowbridge's parcel.

Trowbridge brought suit against Torabi alleging nuisance and trespass. Specifically, Trowbridge claimed that the twelve inch culvert constructed beneath the driveway was of insufficient size and restricted the flow of water to the portion of the pond located on Trowbridge's land property, causing the pond to stagnate. The trial court granted Torabi's motion for summary judgment on this issue, ruling that the law of property rights (nuisance law) rather than water rights applied, and that Torabi's driveway was properly constructed and a reasonable use of Torabi's land.

The Court of Appeals of Indiana reversed and remanded the case, holding that the law of water rights did apply, but that the record presented did not permit a judgment as to which water rights rule applied.

In Indiana, different water rights attach depending upon whether the water is classified as surface water or as a pond or natural watercourse. If the water is surface water, then the "common enemy" rule would apply, which apparently would permit a landowner to either release surface water into an existing channel or to block it and retain it, at will, without regard to neighboring interests. If the water constituted a natural pond or other body of water, then adjoioning landowners owe to their neighbors the duty to permit the natural flow of water to continue without artificial obstruction.

The two water rules led to diametrically opposite results in this case. Therefore, the classification of the body of water is a critical issue, and the appeals court found that this issue could not be resolved on the existing record, making the resolution of the matter by summary judgment inappropriate. Additionally, the court rejected defendant's assertion that an upper landowner is entitled to obstruct a watercourse where such obstruction causes injury to others, noting that this issue has not been yet been ruled by the Indiana courts.

In the penultimate paragraph in the opinion the court also appeared to have carved out a third possible analytic approach. If the pond was a "private pond," apparently, then it was neither a natural body of water or surface water, and nuisance principles would apply. The court states that Torabi would be liable on this theory simply if the construction of its dam resulted in injury to Trowbridge. But it is likely the court meant that this result would apply if, on balance, the injury suffered by Trowbridge was an unreasonable impact taking into account the use patterns of both parties and the benefits and burdens resulting from the activity.

Comment: It is indeed unfortunate that, after almost a millenium of common law development, we are still so far away from resolving easily issues that must have existed for the entire period. Recent developments in understanding of hydrology and realizations as to the significance of water as a curse and blessing to modern land development might drive us to create new rules, but one would think that we would have existing rules that would permit a ready resolution of cases like this so that parties can get on with their lives and their land development.

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