Farmers win reversal in drainage appeal against town

Montgomery County farmers who claimed work done by a town to improve its stormwater drainage ruined their acreage won reversal Monday of a trial court ruling against them.

Darrell and Sandra Birge sued the town of Linden and other parties over work done by a contractor that they said cut off an agricultural ditch that drained their land, resulting in “the inability to farm approximately 13 acres of prime farmland because of the chronic wet and bog-like condition” that resulted after the work.

The Birges’ claim asserted nuisance and that the town of Linden and the Montgomery County drainage board conspired to improperly utilize an agricultural drain’s right of way to facilitate a municipal storm water drain, and wrongly assessed owners of agricultural land for the work. The Birges claim they were assessed $9,000 as their share of a drain for the town that provided them no benefit and in fact cut off their agricultural drain.

Special Judge Peggy Lohorn in Montgomery Circuit Court dismissed the Birges’ suit on the basis they failed to state a claim, but a unanimous appeals panel reversed.

“The complaint asserts claims for nuisance, civil conspiracy, and inverse condemnation. In granting the Town’s motion to dismiss for failure to state a claim, the trial court concluded it was clear on the face of the complaint that discretionary function immunity applies in this case and the Birges failed to allege facts supporting a claim for civil conspiracy,” Judge Margret Robb wrote. “We conclude otherwise.

“We express no opinion as to the ultimate resolution of the immunity issue, but to the extent the trial court concluded immunity under the [Indiana Tort Claims Act] would bar the Birges’ claim for inverse condemnation, the trial court erred,” Robb wrote. “… The trial court concluded the Birges failed to plead facts supporting a claim for civil conspiracy because they did not allege the Town acted unlawfully or to accomplish an unlawful purpose. We disagree.”

The trial court also erred in finding the pleaded facts may support an underlying claim of nuisance but this doesn’t constitute an unlawful purpose or means. “An allegation of civil conspiracy is merely an assertion of concerted action in the commission of a tort causing damages to the Birges. Accordingly, the trial court erred in concluding the Birges failed to allege facts supporting a claim for civil conspiracy,” the panel held.

The case, Darrell Birge and Sandra Birge v. Town of Linden, Indiana, 54A01-1509-PL-1495, is remanded for further proceedings.