Type: Law Bulletins
Date: 04/25/2018

Indiana Reaffirms Common Law Common Enemy Doctrine

The enemy of your enemy is not always your friend; sometimes it is a common enemy we all have to manage. In N.G. Hatton Trust v. Young, ___ N.E.3d ___, No. 92A03-1708-PL-1818, 2018 WL 1415345 (Ind. Ct. App. Mar. 22, 2018), the Indiana Court of Appeals reaffirmed the “common enemy” doctrine as settled law despite the doctrine’s potential for unfair results.

The case involved two neighboring properties, one of which was located up on a hill. After the owner of that property built a new home, it rerouted the path of the rainwater runoff, resulting in damage to the lower neighbor’s property. The lower neighbor brought a lawsuit to recover damages.

The Court of Appeals recited the “common enemy doctrine,” which states “that surface water which does not flow in defined channels is a common enemy and that each landowner may deal with it in such a manner as best suits his own convenience.” Id. at *2. The only limit is that the landowner may not collect the water and unleash it all at once; but almost anything short of that is fair game.

The trial court, affirmed by the Court of Appeals, found that the damage to the lower property came from “surface water,” and therefore the damage fell under the common enemy doctrine. Accordingly, the lower neighbor had no legal recourse, but must have felt great comfort from the words of the court: “although the Common Enemy Doctrine may, at times, inflict hardships, it is as fair to one as it is to another—a guiding precept of the law.” Id. at *3.

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