SUSAN A. SNYDER, Appellant-Plaintiff,
TOWN OF YORKTOWN, DELAWARE COUNTY SURVEYOR, DELAWARE COUNTY DRAINAGE BOARD, RANDALL MILLER & ASSOCIATES, INC., and WATSON EXCAVATING, INC., Appellees-Defendants
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APPEAL FROM THE DELAWARE CIRCUIT COURT. The Honorable Marianne Vorhees, Judge. Cause No. 18C01-1309-CT-60.
ATTORNEY FOR APPELLANT: ELIZABETH A. BELLIN, Elkhart, Indiana.
ATTORNEY FOR APPELLEES TOWN OF YORKTOWN, DELAWARE COUNTY SURVEYOR, and DELAWARE COUNTY DRAINAGE BOARD: MICHAEL R. MOROW, Stephenson Morow & Semler, Indianapolis, Indiana.
CRONE, Judge. RILEY, J., and MATHIAS, J., concur.
Susan A. Snyder appeals the trial court's grant of a motion to dismiss filed by Town of Yorktown, Delaware County Surveyor, and Delaware County Drainage Board (collectively " the Defendants" ). The sole dispositive issue presented for our review is whether the trial court erred when it granted the Defendants' motion to dismiss as to Snyder's claims for trespass and inverse condemnation. Concluding that the allegations in the complaint fail to establish any set of circumstances under which Snyder would be entitled to relief for trespass, but that her complaint sufficiently states a claim for inverse condemnation, we affirm in part, reverse in part, and remand.
Facts and Procedural History
The relevant facts alleged in the complaint indicate that Snyder owns a parcel of property located on South Andrews Road in the Town of Yorktown, Delaware County (" the Property" ). The Property is subject
to a primary mortgage and a home
equity loan in favor of National City Mortgage. A regulated drain, known as the Applegate 120 Regulated Ditch, is located on the Property. Sometime in 2007, the Town of Yorktown (the " Town" ) decided that it wanted to extend and connect its closed storm sewer system to the regulated drain on the Property. On September 25, 2007, Tim Kelty, the Town's manager, emailed Snyder stating that the Town " is working to improving storm drainage in the area around [the Property]. In order to do that our engineer has recommended acquiring additional right-of-way or easement along Andrews Road." Appellant's App. at 63. Snyder did not give her consent for any additional right-of-way or easement. In September or early October 2007, the Delaware County Drainage Board (the " Drainage Board" ) approved the drainage project. On October 15, 2007, the Town and the Drainage Board entered into a written agreement which acknowledged that the Town would provide routine maintenance for the pipe that connected the closed sewer system to the regulated drain, but that general maintenance and repair of the closed sewer system remained the responsibility of the Drainage Board.
On an unknown date in the fall of 2007, at the direction of the Defendants, contractors entered onto the Property, excavated a drainage trench, and installed a storm pipe that terminated above ground at the mouth of the regulated drain. According to the Snyder's complaint, this " invasion of [Snyder's] private property right was done without her consent...." Id. at 24. The effect of the drainage project and " damages caused thereby on [Snyder] was immediate and continues unabated from the date of the beginning of the construction through the present." Id. at 25. Since the project was completed, storm water, debris, and accompanying pollutant runoff has been concentrated to continuously flow onto the regulated drain and the Property to such an extent that roots of long-established trees are exposed. Snyder has suffered and will continue to suffer a diminution in the market value of her property as well as an unwanted aesthetic appearance of her property.
Snyder claims that from 2007 to 2011, the Defendants verbally assured her that they had legal authority to extend the easement related to the regulated drain on the Property. Snyder also claims that she was misled and unable to obtain information as to which entity was responsible for the drain after it was connected to the Town's sewer system. However, in July 2011, pursuant to her open records request, the Town produced to Snyder the agreement between the Town and the Drainage Board which provided that the Drainage Board had jurisdiction over and responsibility for the regulated drain.
In 2012, Snyder hired legal counsel. On March 23, 2012, her counsel sent a letter to the Town and the Drainage Board seeking information regarding the drain project. In the letter, counsel stated, " It is our belief that Ms. Snyder has been damaged by this project for which she has not been compensated." Id. at 84.
On March 5, 2013, Snyder served the Defendants with a tort claim notice indicating her intent to sue them for trespass. Thereafter, on September 6, 2013, Snyder filed a thirty-one-page complaint against the Defendants which included the following: count I, quiet title; count II, declaratory relief; count III, trespass; count IV, unconstitutional partial taking; and claims A through O, numerous untitled additional claims for relief. On November 1, 2013, the Defendants filed a motion to dismiss counts III ...