News & Insights

Common Enemy Doctrine of Water Diversion
February 16, 2017


South Bend / Mishawaka, IN – Most landowners appreciate laws that give them unfettered use and enjoyment of their land.  But what about when your neighbor’s exercise of this freedom starts to negatively impact the use and enjoyment of your land? This is a common problem for landowners seeking to fight surface water. Draining and disposing of surface water often leads to one landowner improving his land at the expense of his neighbor.

Under the Indiana Common Enemy Doctrine of Water Diversion, surface water which does not flow in defined channels is a common enemy, and each landowner may deal with the surface water in any way that best suits his own convenience. According to the Indiana Supreme Court, “it is not unlawful for a landowner to improve his land in such a way as to accelerate or increase the flow of surface water by limiting or eliminating ground absorption or changing the grade of the land even where his land is so situated to the land of an adjoining landowner that the improvement will cause water either 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 that the waters were accustomed to flow” (Argyelan v. Haviland, 435 N.E.2d 973 (Ind. 1982)).

There is no doubt that the common enemy doctrine does give landowners wide discretion in their fight against surface water, and the doctrine confers upon the landowner a seemingly unconditional and unlimited right to dispose of surface water on his property any way possible, despite harm that he might cause to his neighbor. However, the Indiana Court of Appeals has just recently reinforced an important exception to common enemy doctrine: liability is conferred upon the landowner if he “throws or casts water onto his neighbor in unusual quantities so as to amplify the force at a given point or points.”

In the 2016 Indiana Court of Appeals’ case Liter’s of Indiana, Inc. v. Earl E. Bennett and Daniel L. Bodine, liability for surface water discharge was imposed on the Liter’s for collecting surface water on his property and casting it off in concentrated volumes onto the Bennett’s property. The combination of having a drainage pipe that drained closely to the Bennett’s house and another that drained into their driveway culvert, coupled with the construction of an undersized detention basin, caused surface water from the Liter’s property to diffuse at a greater speed, intensity, and volume than before. Given the character of the flow as it entered the Bennett’s property, the jury determined, and the appellate court upheld, that the common enemy doctrine does not preclude the Bennett’s claim of negligence against the Liter’s.

The ability to divert surface water is important to landowners’ use and enjoyment of their land, and the common enemy doctrine does a lot to protect this necessity.  However, because of the damages that arise when water is diverted from one piece property to another, the Indiana Courts continue to uphold exceptions to the otherwise unlimited right.  If you have questions about surface water divergence or other drainage issues, our experienced real estate attorneys would be happy to discuss your individual concerns.

The content of this article is for informational purposes only, and does not contain, nor should be construed as containing, legal advice.