BAKER, J.
In this case of first impression, we consider whether a landowner, who raises the subterranean water table on his land and creates a federally regulated wetland, may invoke the common enemy doctrine of water diversion and shield himself from liability to adjoining landowners whose property also became federally regulated wetlands? We answer this question in the negative and conclude that the trial court erroneously granted the defendant-landowner’s motion for a judgment on the evidence.
Appellant-plaintiff B&B, LLC (B&B) appeals the trial court’s grant of judgment on the evidence with regard to its claims against appellee-defendant Lake Erie Land Company (LEL) for trespass, nuisance, and negligence.…
We conclude that the defense of the common enemy doctrine was properly raised and presented at trial. However, we find that the trial court erred in determining that that B&B’s action was barred by the common enemy doctrine and that its claims against LEL should have been permitted to proceed. Thus, we reverse the trial court’s grant of LEL’s motion for judgment on the evidence and remand for further proceedings consistent with this opinion.
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The 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). Contrary to B&B’s contentions, surface and ground water have been at issue at all times during this litigation. In fact, a memorandum from the Army Corps in 1998 recommended modification of the existing plans for the mitigation bank to prevent water surface elevations from exceeding 591.5 feet. Ex. 15, Tab 18. And B&B presented that document to LEL early in the discovery process in response to a Request for Production of Documents.
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Water that is classified as surface water is governed by the common enemy doctrine. Kinsel v. Schoen, 934 N.E.2d 133, 139 (Ind. Ct. App. 2010). As noted above, our Supreme Court has observed that
In its most simplistic and pure form the rule known as the “common enemy doctrine,” declares that surface water which does not flow in defined channels is a common enemy and that each landowner may deal with it in such manner as best suits his own convenience. Such sanctioned dealings include walling it out, walling it in and diverting or accelerating its flow by any means whatever.
Argyelan, 435 N.E.2d at 975. The common enemy doctrine may apply regardless of the form of action brought by the plaintiff, that is, regardless of whether the plaintiff asserts his claims as an action for negligence, trespass, or nuisance. Kinsel, 934 N.E.2d at 139. However, the common enemy doctrine applies only to surface water. Trowbridge v. Torabi, 693 N.E.2d 622, 627 (Ind. Ct. App. 1998). Thus, if the water in this case is characterized as surface water, the common enemy rule may apply and preclude B&B’s damage claims. Id. at 628.
In discussing the concept of “surface water,” we recognized in Trowbridge that
As distinguished from the waters of a natural stream, lake, or pond, surface waters are such as diffuse themselves over the surface of the ground, following no defined course or channel, and not gathering into or forming any more definite body of water than a mere bog or marsh. They generally originate in rains and melting snows[. . . .] Water derived from rains and melting snows that is diffused over surface of the ground [is surface water], and it continues to be such and may be impounded by the owner of the land until it reaches some well-defined channel in which it is accustomed to, and does, flow with other waters, or until it reaches some permanent lake or pond, whereupon it ceases to be “surface water” and becomes a “water course” or a “lake” or “pond,” as the case may be.
Id. at 627. Put another way, water from falling rains or melting snows that 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, is surface water. Kinsel, 934 N.E.2d at 139.
All the experts in this case agreed that the main source of water upon the properties both above ground and below ground that created the regulated wetland stemmed from subterranean waters flowing from the point north of the B&B property to the Little Calumet River. Tr. p. 171-173, 313, 498-499, 508, 513, 594. As a result, it was the groundwater that was intentionally brought to the surface through LEL’s actions that dispersed throughout the property. Hence, because the water in question in this instance was groundwater, it is not governed by the common enemy doctrine.
Additionally, the evidence demonstrates that LEL was not diverting water to render the land useful. Rather, it is apparent that LEL was collecting water from underground to create a wetland that spilled on to the adjoining properties. In our view, the common enemy doctrine does not permit the creation of a wetland because that type of action simply does not qualify as “water diversion.” Moreover, the parties cite to no authority—and we have found none—that permits a party to stop the free flow of subterranean waters in order to raise the water table not only upon its land but on adjoining lands to create a federally regulated wetland. In our view, neither the principles applicable to subterranean waters nor the common enemy doctrine would permit a defendant to stop the free flow of underground waters so that adjoining properties become flooded.
Although the trial court determined that B&B had a window of opportunity to take action to counter the activity of LEL and protect itself, B&B had no notice that the property was in jeopardy of being classified as a regulated wetland until it received the cease and desist letter from the Army Corps. And by that time, it was too late.
The evidence showed that the water table only needed to reach a level within twelve inches of the surface for a short period during the year. Tr. p. 191. The expert testimony revealed that there was only a two-week period during the growing season that the water table must reach federal regulatory criteria. There was no measuring well on the property and B&B could not have known that the regulatory criteria were being reached.
We also note that there were no wetland plants on B&B’s property in 1996. Hence, the property was not delineated as a wetland. And the only way that the wetland vegetation could have gotten there was through migration from the mitigation bank.
In light of these circumstances, we find applicable here the rule set forth in Cent. Ind. Coal Co. v. Goodman, 111 Ind.App. 480, 39 N.E.2d 484, 486 (1942), where it was held that
“the person, who for his own purposes brings on his lands and collects and keeps there anything likely to do mischief if it escapes, must keep it in at his peril, and, if he does not do so, is prima facie answerable for all the damage which is the natural consequence of its escape. . . . It seems but reasonable and just that the neighbor, who has brought something on his own property which was not naturally there, harmless to others so long as it is confined to his own property, but which he knows to be mischievous if it gets on his neighbor’s, should be obliged to make good the damage which ensues if he does not succeed in confining it to his own property. But for his act in bringing it there no mischief could have accrued, and it seems but just that he should at his peril keep it there so that no mischief may accrue, or answer for the natural and anticipated consequences. And upon authority, this, we think, is established to be the law whether the things so brought by beasts, or water, or filth, or stenches.”
(quoting Niagara Oil Co. v. Jackson, 48 Ind. App. 238, 91 N.E. 825, 827 (1911)).
By way of analogy, the circumstances here suggest that the wetland vegetation sewn and seeded by LEL is just as damaging as the chemical discharge that occurred in Central Indiana Coal Company. In essence, the property is no longer suitable for any purpose other than perhaps hunting and fishing. In short, the land was rendered unproductive and useless to B&B.
Although the trial court determined that there was no evidence that the mitigation bank project had violated any applicable engineering standards, and no breach occurred in carrying out the creation of the wetland mitigation bank, LEL knew that raising the water table in excess of 591.5 feet could potentially flood neighboring properties. Tr. p. 208, 652-63. LEL was also warned that the mitigation bank would likely inundate B&B’s land and its permit prevented it from injuring adjoining property owners. Id. at 139. These facts notwithstanding, LEL increased the water level as part of its design criteria in order to sell more mitigation credits. Id. at 147.
An engineer who worked for New testified that a major consideration in choosing any wetland restoration site is to protect adjoining landowners in order to avoid situations that resulted here. Id. at 597-98. Moreover, John McQuestion, a certified professional soil scientist who testified for B&B, testified that LEL could have employed three methods to stop the propagation of the wetland onto B&B’s property. Those methods included digging a ditch, filling in the north side of the mitigation bank, or applying a herbicide on a periodic basis. Id. at 243-44. However, there was no evidence that LEL took any of these measures. Moreover, LEL’s experts explained that the company erected berms along the property that kept the water contained, removed drain tiles, and plugged a ditch. Id. at 190, 201, 205. The effect of these actions was to back the water up so that it would pool on to B&B’s property. No evidence in the record indicates that B&B knew that wetland hydrology and vegetation existed on its property or that it was aware of some precaution that had to be taken to protect against regulation by federal authorities. In short, B&B could not have defended itself against the water in light of the cease and desist order that it received from the Army Corps.
Therefore, in addition to our conclusion that the common enemy doctrine does not bar B&B’s cause of action against LEL, it is also apparent that B&B presented sufficient evidence in its case-in-chief that LEL undertook a duty and breached that duty by not stopping the propagation of wetland species that culminated in the establishment of the wetlands on B&B’s parcel.
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The judgment of the trial court is reversed and remanded for further proceedings consistent with this opinion.
DARDEN, J., and BRADFORD, J., concur.