Drainage and the Common Enemy Doctrine

Drainage might seem like a fairly dry topic to most people, but when water starts coming on to your property, people often develop a keen interest in the topic. As attorneys for the Tippecanoe County Drainage Board, we have accumulated some experience in the area.

On March 30, 2015, the Indiana Court of Appeals issued a memorandum decision in the case of Ridgeway v. Jacobs (pdf). It’s a “not for publication” decision, meaning that, in a legal case, it can’t be cited as precedent. However, I think it describes a somewhat common situation and provides some good background on Indiana’s legal framework concerning neighbors and drainage.

Ridgeway was a farmer who lived uphill from Jacobs. During heavy rains, water coming off of Ridgeway’s property would flow downhill and erode Jacobs’ driveway. Jacobs claimed that Ridgeway had negligently failed to take action that would prevent runoff onto Jacobs’ property. The trial court ruled in favor of Jacobs and awarded him money for damage to his property.

The Court of Appeals reversed the trial court because Indiana subscribes to the “common enemy” doctrine:

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.
. . .
However, this rule does not allow a landowner to “collect or concentrate surface water and cast it, in a body, upon his neighbor.
. . .
Under the common-enemy doctrine, it is not unlawful for a landowner to accelerate or increase the flow of surface water by limiting or eliminating ground absorption or changing the grade of the land, even if it causes water to stand in unusual quantities on the adjacent land or to pass into or over the adjacent land in greater quantities or in other directions than the water did before. A landowner has the right to occupy and improve his land in such manner and for such purposes as he may see fit, including changing the surface or by erecting buildings thereon.

The common-enemy doctrine applies only to surface water, and not to a natural watercourse. Surface water is defined as water that is diffused over the natural slope of the ground, not following a defined course or channel. Surface water generally originates in rains and melting snows.

(internal citations omitted).

In other words, a landowner has a lot authority when it comes to getting surface water off his or her property — even to the detriment of downhill landowners. However, this authority has limits — the landowner cannot collect the water in a body before casting it off onto neighboring properties, and the landowner can’t divert a natural watercourse under the common-enemy doctrine. (At times, the distinction between water flowing through a natural watercourse — in a defined course or channel — from water flowing over the natural slope of the ground can get a little tricky).

Because the evidence was that the water eroding Jacobs’ driveway was over previously (before the erosion) flat land and at several locations and there was not evidence that Ridgeway collected the water before casting it off, the Court of Appeals determined that the common enemy doctrine was a work, that Ridgeway was entitled to remove the water from his property in the way he did, and that he was not liable to Jacobs for any damage caused by that runoff.