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N.G. Hatton Trust v. Young

Court of Appeals of Indiana

March 22, 2018

N.G. Hatton Trust, Appellant-Plaintiff,
v.
Robert D. Young and Ellen M. Young, Appellees-Defendants.

          Appeal 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

          Bradford, Judge.

         Case Summary

         [¶1] 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")[1] 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.

         Facts and Procedural History

         [¶2] 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)

         [¶3] 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)

         [¶4] 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 affirmative defense.

         [¶5] 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.

         Discussion and Decision

         [¶6] 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 (Ind.Ct.App. 2013).

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 ...

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