N.G. Hatton Trust, Appellant-Plaintiff,
Robert D. Young and Ellen M. Young, Appellees-Defendants.
from the Whitley Superior Court The Honorable J. Brad Voelz,
Judge Pro Tempore Trial Court Cause No. 92D01-1110-PL-262
ATTORNEYS FOR APPELLANT Stephen R. Snyder Randall L. Morgan
Snyder Morgan Federoff & Kuchmay LLP Syracuse, Indiana
ATTORNEY FOR APPELLEES Zachary J. Stock Zachary J. Stock,
Attorney at Law, P.C. Indianapolis, Indiana
This case involves a dispute between owners of adjoining
lakefront lots on Shriner Lake in Whitley County, Indiana.
Appellant-Plaintiff the N.G. Hatton Trust ("the
Trust") appeals from the trial court's order
concluding that Appellees-Defendants Robert D. Young and
Ellen M. Young ("the Youngs") owed no duty to the
Trust pursuant to the common enemy doctrine and the
county's zoning ordinance. Specifically, the Trust claims
that the trial court improperly found that the water diverted
from the Youngs' property was surface water for purposes
of the common enemy doctrine, and that the county's
zoning ordinance did not create a private right of action
based on the Youngs alleged violations and resulting harm to
the Trust's property. Because we disagree, we affirm.
and Procedural History
The Trust has owned property next-door to the Youngs'
property since 1999. The Youngs applied for and received a
permit to build a new home on their lot in late 2006. (Tr.
Vol. I pp. 46, 165). The new home is further up the hill from
the old Young residence and adjacent to the Hatton home.
(App. p. 10). During the course of the construction, the
Youngs also raised their ground with fill between four and
six feet. (App. p. 10). Construction was completed in July of
2007. (Tr. Vol. I p. 47)
During and after heavy rains, since the construction of the
Youngs' new home, water flows across their driveway
before accumulating in a rock bed. The water then crosses the
property line, causing damage to the Trust's concrete
sidewalk and stairs as it travels downhill to the lake. (App.
p. 11). In addition, fill, including rocks, mud, and
sediment, from the Young's construction washed onto the
Trust's property. (Tr. pp. 29-30, 36, 109, 182)
The Trust filed a negligence complaint against the Youngs on
October 24, 2011. (App. Vol. II p. 2, 19-21). According to
the Trust, the Youngs breached a duty to "not divert
surface water in a narrow channel onto [the Trust]'s
property" when they constructed the new home farther up
the hill. (App. Vol. II pp. 19- 20). In the alternative, the
Trust claimed that the Youngs were negligent per se
for their alleged failure to abide by certain sections of the
Whitley County Zoning Ordinance ("the Ordinance")
in the construction of their new home. (App. Vol. II p. 20).
The Youngs answered the complaint and denied that they
negligently caused any damage to the home on the Trust
property. (App. Vol. II pp. 3, 30-47). In a second amended
answer, the Youngs raised the common enemy doctrine as an
A bench trial was held on April 28, 2017, and the parties
subsequently submitted proposed findings. On July 14, 2017,
the trial court entered findings of fact and conclusions of
law. The trial court found that the water flowing from the
Youngs' property "wreaks havoc" on the
Trust's property. App. Vol. II, pp. 10-11. However, the
trial court also found that the water only occurs after heavy
rains, the Youngs were not "collecting, concentrating,
and casting it in a body upon" the Trust's property,
and it was not "outside the definition of surface
water." App. Vol. II, p. 15. Thus, the trial concluded
that "pursuant to the common enemy doctrine, [the
Youngs] ha[d] no duty to have constructed their home in any
manner different from what they have done." App. Vol.
II, p. 15. Having found no duty, the trial court rejected the
Trust's negligence claim. The trial court also rejected
the argument that a violation of the Ordinance created a
private right of action for negligence per se.
The trial court entered findings of fact and conclusions
thereon sua sponte. Sua sponte
findings only control issues that they cover, while a general
standard applies to issues upon which there are no findings.
Eisenhut v. Eisenhut, 994 N.E.2d 274, 276
We may affirm a general judgment with findings on any legal
theory supported by the evidence. As for any findings that
have been made, they will be set aside only if they are
clearly erroneous. A finding is clearly erroneous if there
are no facts in ...