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As a subscriber you can listen to articles at work, in the car, or while you work out. Subscribe NowThe Court of Appeals of Indiana has reversed in a dispute between neighbors over the use of a drainage line in Montgomery County, finding the farmland owner’s suit wasn’t subject to a six-year statute of limitations.
In June 2018, Indiana-based B&B Farm Enterprises LLC sued its neighbor, Curtis Hudson and the Curtis K. Hudson and Cindy L. Hudson Revocable Living Trust, over a drainage line B&B claimed was solely meant for its own use.
The farm specifically alleged the neighbors had “trespassed” on B&B’s property and “without authority or right” modified a private drain, “imped[ing] the proper flow by addition [sic] flow” and “falsely claim[ing]” the drain was a mutual drain.
B&B argued in a lawsuit that it was entitled to the full service of the unmodified drain and sought an order requiring the disconnection and removal of the Hudson’s drain.
Moving for summary judgment, the neighbors alleged B&B’s complaint stated only a tort claim of either trespass or injury to property other than personal property; and in either case the claim was time-barred because the complaint was filed outside the applicable six-year statute of limitations.
The Hudson’s also asserted that, with the consent of B&B’s predecessor in interest, certain drainage tile had been installed on B&B’s farmland prior to Dec. 5, 2011 – before B&B acquired the land in 2012.
B&B countered that its predecessor in interest gave the neighbor permission to connect a 6-inch line to drain a small pond from the neighbor’s property but they instead connected 12-inch and 8-inch lines, draining not only the small pond but also bringing in water from another watershed.
The Montgomery Superior Court ruled for the Hudsons, finding B&B’s allegation was that there was only one trespass and that as a result the farm has had to deal with ongoing flooding issues.
Finding that the Hudson’s “narrowly construed” the complaint as seeking to recover for a single alleged “trespass,” the COA concluded that B&B claimed its neighbor had made improper use of its drain and that it fairly presented a classic, real property claim.
“Put differently, the essence of the dispute as developed through summary judgment proceedings is whether Neighbor has an easement to use the drainage system on the Farmland and, if so, whether Neighbor’s use of the drainage system exceeds the scope of the easement,” Judge L. Mark Bailey wrote, finding such a claim is not subject to a six-year statute of limitations.
“All in all, we conclude that the complaint is not limited to a claim of either trespass or injury to property other than personal property,” it continued. “And with no brief supporting the entry of summary judgment in part or in whole, we conclude that Farm has established prima facie error in the order granting summary judgment on grounds that all claims were subject to a six-year statute of limitations. We ultimately reverse and remand for further proceedings.”
The case is B & B Farm Enterprises, LLC v. Curtis K. Hudson and Cindy L. Hudson Revocable Living Trust: Curtis Hudson, 21A-PL-2354
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