Preview:

Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.

ATTORNEYS FOR APPELLANT: CY GERDE Hanna, Gerde & Russell Lafayette, Indiana MICHAEL L. PARKINSON Parkinson Law Office Lafayette, Indiana

ATTORNEY FOR APPELLEES: STUART K. WELIEVER Henthorn, Harris & Weliever Lafayette, Indiana

FILED
Nov 30 2009, 9:41 am
of the supreme court, court of appeals and tax court

CLERK

IN THE COURT OF APPEALS OF INDIANA
CHRISTOPHER CORNETT, ) ) ) ) ) ) ) ) ) ) ) )

Appellant-Plaintiff, vs. EVERETT BAMISH and MARY BAMISH, Appellees-Defendants.

No. 54A04-0902-CV-91

APPEAL FROM THE MONTGOMERY CIRCUIT COURT The Honorable Thomas K. Milligan, Judge Cause No. 54C01-0505-PL-186

November 30, 2009

MEMORANDUM DECISION - NOT FOR PUBLICATION

CRONE, Judge

Case Summary Christopher Cornett appeals the trial courts findings of fact, conclusions thereon, and judgment entered in favor of Everett and Mary Bamish (collectively, "the Bamishes"). We affirm. Issues Cornett raises several issues for our review, which we restate as: I. Whether Indiana Code Chapter 36-9-27, precludes judgment in favor of the Bamishes; Whether the trial court erred when it denied Cornetts claim for damages on the basis of the common enemy doctrine; Whether the trial court erred when it found that Leland Cornett had authority to consent to the Bamishes drainage work on Cornetts property; Whether the trial court erred when it concluded that the Bamishes may enter upon Cornetts land for the sole purpose of repairing damaged drain tiles.

II.

III.

IV.

Facts and Procedural History The facts most favorable to the trial courts judgment reveal that Cornett, a California resident, is the owner of a 9.4-acre parcel of land in Montgomery County. His family purchased the parcel in the 1930s. Cornett and his siblings inherited the property in January 1990 upon their mothers death. Cornett currently owns the parcel as a tenant in common with three of his siblings. A fifth sibling, Leland Cornett ("Leland"), is no longer an owner of the parcel but, by way of a private family settlement agreement, was given a life estate in

2

the property.1 Leland built a house on the property and, at all times relevant to this case, has resided on the property. The Bamishes own real property which abuts the Cornett property. They have owned the property for more than fifty years. The abandoned Central Indiana Railway right-of-way serves as a boundary line between the Cornett and Bamish properties. The right-of-way consists of a raised berm. Cornett owns the northern half and the Bamishes own the southern half of the right-of-way. In 1997, the Bamishes installed a fourteen-inch-diameter pipe ("the pipe") across the right-of-way to drain surface water that would occasionally accumulate on their property. Everett Bamish buried the pipe in the raised berm and placed it so that water would drain into the Harris ditch, an open waterway on the Cornett side of the right-of-way. The pipe is approximately twelve to fourteen feet in length. The pipe is only long enough to run from the Bamishes field, under the right-of-way, and into the Harris ditch. The pipe does not drain onto Cornetts land but directly into the Harris ditch. In addition to the pipe, there are five other drain tiles that cross the Cornett property and drain into the Harris ditch that have been in place for more than twenty years and that were in place prior to the Bamishes purchase of their property. Leland watched Everett Bamish the whole time he worked to install the pipe. Leland also helped Everett Bamish repair some additional damaged drain tile on both the Bamish property and the Cornett property. In late 1997, Cornett sent a letter to the Bamishes

A sixth and now deceased sibling, Eileen Cornett, also had no ownership interest but was similarly permitted to live on the property during her lifetime.

1

3

explaining that the pipe trespassed over his property and asking them to remove the pipe and repair the property. The pipe was not removed. On May 19, 2005, Cornett filed a complaint in the Montgomery Circuit Court seeking damages and equitable relief for flooding of his property and erosion damage he attributed to the actions of the Bamishes. On December 12, 2006, the Bamishes filed a motion for summary judgment arguing primarily that Cornett failed to commence the action within the applicable statute of limitations. On January 31, 2007, the trial court granted summary judgment in favor of the Bamishes. On appeal, another panel of this Court reversed and remanded, concluding in a memorandum decision that Cornett had satisfied the appropriate twenty-year statute of limitations to bring his equitable claim requesting removal of the pipe and the six-year statute of limitations to address his claim for damages for flooding and erosion. Cornett v. Bamish, No. 54A01-702-CV-109 (Ind. Ct. App. Nov. 30, 2007). We concluded, however, that Cornett had not satisfied the statute of limitations to bring a claim for damages to address the trespass of the pipe. Id. A bench trial was held on August 19 and 20, 2008. Thereafter, on January 13, 2009, the trial court entered its findings of fact, conclusions thereon, and judgment. In relevant part, the trial court concluded as follows: 1. [Cornett], as a tenant in common, may maintain this action against [the Bamishes] in his individual name to protect his interest in the property. 2. The right of way, air, light, or other easement from, in, upon, or over land owned by a person may not be acquired by another person by adverse use unless the use is uninterrupted for at least twenty years. A prescriptive easement exists through the Cornett property for tiles two, three, four, five and six.
4

3. The doctrine of apparent authority is premised in equity, and is based upon the principle where one of two innocent parties must suffer from the conduct of an agent; the loss should fall on the principal and not the third party. Grosan v. Laborers Intl U. Of N. Am., 489 N.E.2d. 656 (IN App 1986). The third party must reasonably believe the agent is acting within the scope of authority. Storm v. Marsischke, 304 N.E.2d. 840 (IN App 1073)[.] 4. Leland Cornett had the apparent authority in 1997 to give consent to or to acquiesce in Everett Bamish performing drainage work on the Cornett property. Based upon the apparent authority of Leland Cornett, Everett in 1997 did not commit trespass by performing drainage tile work on the Cornett property or installing the pipe of tile number one. 5. It is axiomatic that one who seeks equitable relief must come to the court with clean hands. The court finds that [Cornetts] actions in plugging the drains that were legally in place soils his hands such that equity is not available as a remedy to him. [Cornetts] claim in equity is denied on the basis. 6. Further, equity seeks to do justice. [The Bamishes] action in installing the pipe of tile 1, while arguably wrong and a trespass, is de minimus [sic]. The intrusion is slight and underground. There is no erosion, washing or other harm to the Cornett property as a result of the installation. It is placed at the edge of the Cornetts [sic] property in a corner inaccessible except by crossing the Harris ditch. The benefit to [the Bamishes] is far, far greater than any inconvenience, damage or interference suffered by [Cornett]. The court finds no inconvenience, or interference or damage to [Cornett] by that installation other than what would be simply a technical trespass, absent the consent or acquiescence by reason of the apparent authority in Leland Cornett. Justice prohibits the court from requiring [the Bamishes] to remove the pipe in tile 1. [Cornetts] claim in equity is denied on this basis. 7. Equity regards that as done which ought to be done or should have been done. On this basis the court finds, as a matter of law, that [the Bamishes] should be permitted access to Cornetts property on both sides of the Harris ditch for the purposes, only, of unplugging, repairing and maintaining tiles one through six and the outlets of those drains emptying into the Harris ditch, which flow from and drain Defendants land. That access is to be at reasonable times, and [the Bamishes] [are] responsible for repairing any damage to [Cornetts] land done during any such work, and restoring it to the condition it was prior to the work being done. Further [the Bamishes] should maintain such tiles and outlets in such a manner that there is no erosion,
5

washing or other loss of soil from [Cornetts] property or, if there is, the damaged areas are to be repaired as soon as is reasonably possible. 8. A land owner may protect himself against the flow of surface waters regardless of the effect it may have on the others lands. Surface water is a common enemy which any owner may combat as best he can. It is not unlawful to accelerate or increase the flow of surface water by limiting or eliminating ground absorption or changing the grade of land. Argyelan vs. Haviland 435 N.E.2d.173 (Ind. 1982). [Cornetts] claims regarding [the Bamishes] placing surface water onto the Cornett property are denied on the basis of the Common Enemy Doctrine. 9. Based upon evidence that the Cornett property has one of the lowest points of elevation in the area and has regularly flooded or had standing water over the last 50 years, the court finds as a matter of law that the Cornett property naturally floods. [Cornett] has failed to introduce any credible evidence of probative value that [the Bamishes] either did or failed to do anything that caused or contributed to the flooding of [Cornetts] property. 10. [Cornett] has failed to prove any damage to the real estate due to [the Bamishes] action or failure to act. [Cornett] has failed to establish any damages from loss of use, deprivation of use or interference with [Cornetts] peaceful enjoyment of his real estate due to [the Bamishes] action or failure to act. Based upon its findings and conclusions, the trial court entered judgment in favor of the Bamishes. Cornett now appeals. Discussion and Decision The trial court entered special findings of fact and conclusions thereon. We apply a two-tiered standard of review to special findings of fact and conclusions thereon. Harlan Bakeries, Inc. v. Muncy, 835 N.E.2d 1018, 1029 (Ind. Ct. App. 2005). First, we determine whether the evidence supports the trial courts findings, and then we determine whether the findings support the judgment. Id. This Court will not disturb the trial courts findings or judgment unless they are clearly erroneous. Id. "Findings of fact are clearly erroneous when
6

the record lacks any reasonable inference from the evidence to support them, and the trial courts judgment is clearly erroneous if it is unsupported by the findings and conclusions which relied upon those findings." Infinity Prods., Inc. v. Quandt, 810 N.E.2d 1028, 1031 (Ind. 2004). "In determining whether the findings and judgment are clearly erroneous, we consider only the evidence favorable to the judgment and the reasonable inferences to be drawn therefrom." Id. Additionally, Cornett appeals from a negative judgment. Therefore, he must

demonstrate that the trial courts judgment is contrary to law. Id. at 1032. Specifically, [a] judgment is contrary to law only if the evidence in the record, along with all reasonable inferences, is without conflict and leads unerringly to a conclusion opposite that reached by the trial court. In conducting our review, we cannot reweigh the evidence or judge the credibility of any witness, and must affirm the trial courts decision if the record contains any supporting evidence or inferences. Id. ",,To the extent that the judgment is based on erroneous findings, those findings are superfluous and are not fatal to the judgment if the remaining valid findings and conclusions support the judgment." Harlan Bakeries, 835 N.E.2d at 1029 (quoting Lasater v. Lasater, 809 N.E.2d 380, 397 (Ind. Ct. App. 2004)). I. Indiana Drainage Act We first address Cornetts contention that the Bamishes installation of the pipe is unlawful pursuant to the Indiana Drainage Act, Indiana Code Chapter 36-9-27 ("Drainage Act") and, thus, the trial court erred when it entered judgment in favor of the Bamishes. We note that Cornett neither mentioned the Drainage Act in his pleadings nor argued to the trial court at any time that its provisions should apply to his claim for damages and equitable relief
7

against the Bamishes. As a general rule, a party may not present an argument or issue to an appellate court unless the party raised that argument or issue to the trial court. GKC Indiana Theatres, Inc. v. Elk Retail Investors, LLC., 764 N.E.2d 647, 651 (Ind. Ct. App. 2002). This rule of waiver in part protects the integrity of the trial court so it cannot be found to have erred as to an issue or argument that it never had the opportunity to consider. Id. In an attempt to avoid waiver, Cornett raises issues and arguments pursuant to the Drainage Act for the first time on appeal and contends that the trial court was without subject matter jurisdiction to issue its judgment in this case.2 It is well established that when the legislature has provided a statutory scheme with an exclusive administrative remedy, our courts lack jurisdiction to hear the matter until the administrative procedures have been exhausted or request for relief has been denied. State v. Sproles, 672 N.E.2d 1353, 1358 (Ind. 1996). Generally, the expression of exclusivity will come in one of two forms. Some statutes will affirmatively state that its provisions constitute the exclusive remedy for such actions, and others provide that judicial review is available only after the remedies provided by statute are exhausted. Romine v. Gagle, 782 N.E.2d 369, 379 (Ind. Ct. App. 2003), trans. denied. The Drainage Act does neither. There is no language in the Drainage Act to indicate that the Act is intended to serve as the only recourse for parties pursuing claims such as those brought by Cornett in this case. The only provisions of the Drainage Act relevant to judicial review discuss the rights of land

Essentially, Cornett argues that the lawsuit he filed should have been dismissed sua sponte by the trial court for lack of subject matter jurisdiction because he had not exhausted his administrative remedies by contesting the Bamishes actions to the Montgomery County Drainage Board pursuant to the Drainage Act.

2

8

owners affected by a final order or determination of the drainage board, to appeal the drainage boards determination to the circuit or superior court in the county in which the board is located. See Ind. Code

Download Christopher Cornett v. Everett Bamish and Mary Bamish.pdf

Indiana Law