Pamela Frazee v. Douglas J. Skees and Angela D. Skees

Apr 21 2015, 8:25 am
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEES
John J. Schwarz, II Eric H. Burns
Schwarz Law Office, PC Reid D. Murtaugh
Hudson, Indiana Withered Burns, LLP
Lafayette, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Pamela Frazee, April 21, 2015
Appellant-Plaintiff, Court of Appeals Case No.
79A04-1406-PL-269
v. Appeal from the Tippecanoe Superior
Court
Douglas J. Skees and The Honorable Gregory J. Donat,
Angela D. Skees, Judge
Appellees-Defendants. Cause No. 79D04-1205-PL-18
Najam, Judge.
Statement of the Case
[1] Pamela Frazee filed a complaint against Douglas and Angela Skees (“the
Skeeses”), which arose out of a dispute regarding a subsurface drain running
through the parties’ properties in Tippecanoe County. In her complaint, Frazee
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alleged property damage, nuisance, and criminal trespass. The Skeeses filed a
counterclaim alleging negligence, nuisance, criminal trespass, and invasion of
privacy. All parties sought damages pursuant to the Crime Victim’s Relief Act,
Indiana Code Section 34-24-3-1. Following a bench trial, the trial court found
in favor of Frazee on her nuisance claim and in favor of the Skeeses on their
trespass claim. The trial court awarded attorney’s fees to both parties, and it
awarded treble damages to the Skeeses. Frazee now appeals, and the Skeeses
cross-appeal. Collectively, they present several issues for our review, which we
revise and restate as follows:
1. Whether the trial court erred when it concluded that the
subsurface drain was a mutual drain.
2. Whether the trial court erred when it concluded that the
Skeeses did not abandon their rights in the subsurface, mutual
drain.
3. Whether the trial court erred when it concluded that the
Skeeses did not trespass when they connected a perimeter drain
to the subsurface drain.
4. Whether the trial court erred when it concluded that Frazee
was solely responsible for the costs of repairs made to a broken
portion of the subsurface drain that ran through her property.
5. Whether the trial court erred when it determined that Frazee
committed a criminal trespass and when it awarded treble
damages and attorney’s fees to the Skeeses pursuant to the Crime
Victim’s Relief Act.
6. Whether the trial court abused its discretion when it awarded
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attorney’s fees to Frazee.
[2] We affirm the trial court’s conclusions that the subsurface drain was a mutual
drain and that the Skeeses did not abandon the drain. Thus, we also affirm its
judgment that the Skeeses did not trespass when they connected their perimeter
drain to the subsurface drain. Further, we affirm the court’s conclusion that
Frazee was solely responsible for the costs of the repairs that she had made to
the portion of the subsurface drain that ran through her property. However, we
reverse the trial court’s judgment that Frazee committed a criminal trespass,
and, therefore, we also reverse the award of treble damages and attorney’s fees
to the Skeeses. Finally, we reverse the trial court’s award of attorney’s fees to
Frazee.
Facts and Procedural History
[3] Frazee and the Skeeses are neighbors with a contentious relationship. Their
properties border the southbound side of U.S. Highway 52 (“Highway 52”) in
Tippecanoe County. The Skeeses’ property (“the Skees Parcel”), which they
acquired in 1997, sits north of Frazee’s property (“the Frazee Parcel”), which
she purchased in 2006. A portion of the Frazee Parcel extends north and west,
parallel to the Skees Parcel. A strip of land owned by Tippecanoe County (“the
County Parcel”) divides the eastern boundary of this part of the Frazee Parcel
and the western boundary of the Skees Parcel. The Skees Parcel has a higher
elevation than the County Parcel, and the County Parcel has a higher elevation
than the Frazee Parcel. All properties sit atop a high water table, and, in 2011,
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when the current dispute arose, the area had received more rain than normal.
Surface water naturally drains westward along a natural swale from the Skees
Parcel at Highway 52, across the County Parcel and towards the Frazee Parcel.
[4] Approximately seventy to eighty years before the current dispute, a clay tile
drain (“the subsurface drain” or “the drain”) was placed under the property
now owned by the Skeeses, the County, and Frazee. The subsurface drain
began, as four-inch pipe, on the Skees Parcel at Highway 52, and it traveled
along the path of the swale. Near the point where the Skees Parcel intersected
the County Parcel, the subsurface drain expanded from a four-inch clay tile
drain to a six-inch clay tile drain. The six-inch clay tile drain then traveled
through the Frazee Parcel and, eventually, emptied into a nearby stream.
[5] At some point,1 Frazee installed an open-loop geothermal system on her
property, which discharged its waste water into the six-inch subsurface drain.
During the installation of the geothermal system, Frazee discovered that a
portion of the subsurface drain under her property had been crushed by tree
roots and, as a result, did not function properly. Thus, to properly complete the
geothermal system, Frazee had to repair the subsurface drain. Her repair
replaced the broken section of the clay tile drain with new, six-inch plastic drain
pipe, which connected at a blowout.
1
The record is not well developed with respect to the times various events occurred. As such, we simply
refer to a number of events as having occurred “at some point” after a prior event.
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[6] Subsequently, in March 2011, Frazee began construction on the second of two
barns on her property, both of which now sit southwest of the County Parcel
and west of the Skeeses’ home. The second barn sits directly atop the natural
swale. When Frazee began construction on the second barn, on March 11,
2011, she revisited the blowout to check the functionality of the subsurface
drain. When she did, she found free-flowing toilet paper and sewage in the
subsurface drain. Frazee called the Tippecanoe County Health Department
(“Health Department”) to report her findings.
[7] Ron Noles, the Chief Environmentalist at the Health Department, received
Frazee’s call. Noles went to the Frazee Parcel, and, after he had viewed the
blowout to confirm the presence of sewage in the subsurface drain, Noles
searched the County’s records for the septic systems of the homes immediately
adjacent to the Frazee Parcel. Noles discovered Frazee’s record but could not
find records for the Skeeses’ home or for another of Frazee’s neighbors, the
Dearths.2 Consequently, Noles ordered dye tests of those septic systems, which
involves the flushing of florescent green dye down a toilet within a home.
Noles conducted the dye test at the Skeeses’ home on March 22, and the dye
appeared at the blowout on the Frazee Parcel that same day, indicating a
positive test for sewage from the Skeeses’ home.
2
The Dearths are not now, and have never been, a party to this action.
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[8] The Health Department confirmed that the Skeeses’ system was inadequate,
which had resulted in the discharge of sewage onto the Frazee Parcel.3 At the
time of the dye test, the Skeeses’ home operated on its original septic system,
which lacked an absorption field and was deemed to be too small. The Skeeses’
home was also found to be improperly plumbed. The sewage from only one
bathroom emptied into the old septic system, but the remainder of the home
emptied into its basement floor drain, a four-inch clay tile drain. The basement
floor drain, in turn, connected to the subsurface drain. The Skeeses had
inspected their septic system when they purchased their home, but that
inspection did not reveal any problems. Before the dye test, the Skeeses did not
know about the sewage discharging into the subsurface drain and onto the
Frazee Parcel.
[9] As a result of the investigation, the Health Department issued abatement orders
to the Skeeses and the Dearths, which directed them to fix their septic systems
in order to stop the discharge of sewage onto Frazee’s land.4 The Health
3
Noles performed a dye test at the Dearths on March 31, which also indicated a positive test for sewage at
the blowout. The septic system for the Dearths’ home was also inadequate, but the Dearths had another,
compliant septic system on an adjacent property that they owned. They connected their home to that system
and fixed their sewage problem. After that, the Dearths had no further involvement with the Health
Department.
4
The presence of sewage in a subsurface drain violates an Indiana State Department of Health Rule, see 410
Ind. Admin. Code 6-8.3, and Tippecanoe County Ordinance 99-30-CM. The ordinance incorporates Title
410, Article 6, Rule 8.1 of the Indiana Administrative Code, a provision repealed on January 1, 2011. See
Ind. Reg. LSA Doc. No. 09-7 (Aug. 19, 2010). Although that provision was repealed before the dispute arose
in this case, the parties also cite to Rule 8.1. Rule 8.1 was repealed and replaced by Rule 8.2, which has also
since been repealed and replaced by Rule 8.3. See Ind. Reg. LSA Doc. No. 12-156 (Oct. 19, 2012).
Nevertheless, Rule 8.3 considers a failure of “residential on-site sewage system” to be a violation of the
Indiana State Department of Health Rules. 410 I.A.C. 6-8.3-55. A failure includes “discharge[] from the on-
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Department issued its order to the Skeeses on March 24, and it demanded the
installation of a compliant septic system by April 25. However, due to the large
amounts of rain the area had received in early 2011, the Skeeses were unable to
install a new septic system, which should be placed in dry soil, by April 25. In
the interim, the construction of Frazee’s second barn continued, and, during
that process, an auger struck the subsurface drain, which caused sewage to
discharge onto the construction site. Rather than repair the subsurface drain
along its original line, Frazee rerouted the drain around the north side of the
barn and swale.
[10] To remediate the problems with their septic system, the Skeeses first re-plumbed
their home to route all waste water to the new septic system, once installed.
The Skeeses, however, kept their furnace’s condensation pipe connected to the
basement floor drain. Next, when the rain relented in July, the Skeeses
installed a new septic system with a finger absorption field. At the same time,
the Skeeses’ contractor dug a hole at the end of the septic’s finger system, near
the County Parcel, and severed the Skeeses’ connection to the subsurface drain.
The contractor placed a boulder inside of the hole over the now-severed
connection to prevent a future reconnection but left the hole open and the
site sewage system causing contamination of a potable water supply, ground water, or surface waters.” 410
I.A.C. 6-8.3-33.
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boulder exposed to allow ground water to continue to flow into the hole and,
ultimately, leach into the subsurface drain through its clay. With the
connection severed, the hole would fill with water and eventually overflow into
the swale.
[11] On July 27, the Health Department found that the Skeeses’ new septic system
made their home legally compliant. Initially, the Skeeses’ new system worked
properly and Frazee had no more issues. However, the disconnection of the
Skees Parcel from the subsurface drain, in conjunction with the accumulation of
rain, made the already high water table rise higher, which interfered with the
proper functioning of the new septic system. For the septic system to function
correctly, the water table had to be lowered. Consequently, to lower the water
table, the Skeeses placed a submersible sump pump into the hole near the
County Parcel, where the contractor had severed the Skeeses’ connection to the
subsurface drain.
[12] Subsequently,5 on November 28, Frazee discovered flooding in one of her
barns. Frazee followed the water flowing into her barn to the hole on the Skees
Parcel and the sump pump. She called Noles but could not reach him, and so
she called the police. Someone with the police department called Douglas
Skees, who explained the situation, and the police allowed Douglas to continue
5
It is not clear how much time passed between the Skeeses’ placement of their sump pump and the flooding
on the Frazee Parcel.
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pumping. Frazee disagreed with the police, and she entered onto the Skees
Parcel and unplugged the pump.
[13] When Douglas came home from work that afternoon, he found the pump
unplugged, and he plugged it back in. But, that night while the Skeeses slept,
Frazee again entered onto their property and unplugged the pump a second
time. As a result, the water table rose, which caused water to back up through
the basement floor drain inside the Skeeses’ house and flood the Skeeses’
basement with eight to ten inches of water.6 Several of the Skeeses’ household
items were damaged by the water. Shortly thereafter, the Skeeses resumed
pumping from the hole. The Skeeses also had to install a pump in their
basement to remove the standing water.
[14] Noles returned to the Skees Parcel twice in December. On December 6, Noles
went to the Skees Parcel to determine whether they were pumping sewage
effluent from the hole. To do so, Noles placed dye directly into the septic
system via its outside cleanout. The dye appeared in the hole on December 15,
which indicated that sewage was still traveling to the Frazee Parcel by means of
the swale into which the water from the hole was being pumped. As a result,
the Skeeses were directed to stop pumping from the hole. They did so but,
nevertheless, the ground water containing the septic effluent would eventually
fill the hole, run over into the swale, and make its way to the Frazee Parcel.
Thus, Noles determined that more work was needed to remediate the Skeeses’
6
The water also flooded the new septic system, and, consequently, the Skeeses had to have it pumped.
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sewage problem. As a result, the Health Department filed a lawsuit seeking to
enjoin the Skeeses’ discharge of sewage onto the Frazee Parcel.
[15] In the interim, on December 9, Noles met with Douglas Skees and an
excavator, Mark Remley, at the Skees Parcel. Noles observed ponding in the
hole, which would then overflow into the swale and discharge offsite onto the
Frazee Parcel. In an effort to find a pipe that might be feeding the now-
disconnected subsurface drain, Remley dug two more holes on the Skees
Parcel. He dug the first that day near Highway 52 but did not find any drain
pipe. However, a hole dug near the Skeeses’ home revealed the clay tile drain
that led to the basement floor drain. The basement floor drain connected to the
otherwise-severed subsurface drain.
[16] To ensure compliance and to find a solution to the Skeeses’ septic problem,
Noles involved the State Board of Health and a soil consultation firm. The
consultation firm determined that the area’s
soil has a seasonal high water table at or above the surface during
wet periods.
Because of the wetness characteristics, a perimeter or curtain
drain is needed to help make this [septic] system function
properly during wet periods. Surface water should also be
directed around this system to keep water from flowing across it.
Frazee Exh. 58. Accordingly, pursuant to a Stipulation of Agreement between
the Health Department and the Skeeses, the Skeeses agreed to install a
perimeter drain around the septic system’s absorption field, which would
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“significantly reduce migration of ground water into the real estate’s septic
absorption field . . . [and] enhance the functioning of the septic system.”
Appellees’ App. 4-5. The perimeter drain would then connect to the portion of
the subsurface drain located on the County Parcel, thereby reestablishing a
connection between the Skeeses’ drainage and the subsurface drain. The
perimeter drain would collect the same amount of water as the subsurface drain
originally had before it had been disconnected. Therefore, the perimeter drain
would not increase the downstream burden placed on the subsurface drain.
[17] On January 11, 2012, with the Indiana State Department of Health, the
Tippecanoe County Sheriff’s Department, Noles, the Skeeses’ attorneys, and
Frazee present, the Skeeses installed a four-inch perimeter drain around their
septic system’s absorption field. However, when they attempted to tie into the
subsurface drain on the County Parcel, Frazee sat down in the way of the
backhoe and blocked access to the necessary dig site for two hours. The
contractor continued to bill the Skeeses for the time that work was delayed.
The Sheriff warned Frazee that she would be arrested for trespass if she
continued to block access to the subsurface drain after a certain time, and she
moved only when that time expired. When work resumed, at the direction of
the Health Department, the Skeeses severed their basement’s connection to the
subsurface drain. Further, at two locations, they capped with concrete the
portion of the subsurface drain that ran underneath the new septic system.
[18] After the Skeeses’ connected the perimeter drain to the subsurface drain, Frazee
claimed that her barns flooded more often, and, at some later time, she installed
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a curtain drain on the barns’ eastern side, near the County Parcel’s property
line, and she also replaced the remainder of the original subsurface drain west
of her barns to its outlet at a nearby creek with six-inch plastic drain pipe.7
[19] On March 29, Frazee filed an action in Tippecanoe Superior Court. Frazee
filed an amended complaint on May 29. In her amended complaint, Frazee
alleged a nuisance claim based on the discharge of sewage onto the Frazee
Parcel. And, based on the connection of the perimeter drain to the subsurface
drain, Frazee alleged that the Skeeses had committed criminal trespass, and she
sought damages under the Crime Victim’s Relief Act. In particular, Frazee
alleged that the connection of the perimeter drain to the subsurface drain caused
the subsurface drain to collect more water than it originally captured from the
Skees Parcel, which resulted in a greater downstream burden on the drain and
more frequent flooding of her barns.8
[20] The Skeeses filed an answer and counterclaim on June 29, which alleged
negligence, nuisance, criminal trespass, and invasion of privacy, and they also
sought damages under the Crime Victim’s Relief Act. However, at trial, the
Skeeses pursued only their allegation of criminal trespass and damages under
the Crime Victim’s Relief Act. The Skeeses alleged that Frazee had committed
7
To run the subsurface drain to the creek, Frazee had to alter the original route of the drain. The owner of
the land where the subsurface drain historically had discharged into the creek would not allow Frazee to run
the new drain through his property, but Frazee received permission from another landowner and ran the
drain through that property instead.
8
Frazee also alleged a claim for property damage based on the Skeeses’ “filling [a sinkhole] with various
materials, which subsequently washed into Frazee’s subsurface drainage system.” Appellant’s App. at 33.
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criminal trespass when she entered onto their property to disconnect the sump
pump the second time, which resulted in the flooding of their home.9
[21] The trial court held a two-day bench trial on February 27 and March 18, 2014.
In relevant part, the trial court entered the following findings of fact and
conclusions thereon pursuant to Indiana Trial Rule 52(A):
1. [Frazee], [the Skeeses], and Tippecanoe County (County)
each own parcels of real estate in Tippecanoe County[,] which
are located generally to the south and [west] of US 52 South.
***
9. Many years prior to the parties’ purchase[s of their respective
parcels], the Skees Parcel, the County Parcel, and [the] Frazee
Parcel had all been served by a single[,] four[-]inch diameter[,]
clay subsurface drain[] . . . starting at or near US 52 at the
northeast and draining all three (3) parcels toward the southwest
into the open drainage ditch located offsite of all (3) parcels.
10. The drain[] . . . was a mutual drain when originally installed
and at all times thereafter.
***
12. Frazee was responsible to repair any breaks in the mutual
[drain] on her property.
***
9
The Skeeses also alleged that Frazee trespassed on their land when she blocked access by the perimeter
drain to the subsurface drain. However, Frazee was located on the County Parcel at the time of this alleged
trespass.
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37. Frazee also chose to replace the original 4” clay drain pipe
on her property with a 6’ [sic] plastic pipe to the southwest of her
second pole barn. [The] Skees[es] are not liable for claimed
damages on this issue since the repairs to her mutual drain on her
property were her responsibility and done for her own
convenience.
38. . . . [The] Skees[es] were violating the law by draining their
septic through the [subsurface drain].
39. Frazee never gave the Skees[es] . . . permission to pump
sewage onto or through her property. . . . The Tippecanoe
County Health Department ordered [the Skeeses] to remediate
within 30 days.
40. The Skees[es] did not remediate the problem within 30
days[.]
***
43. During this time frame, the area in which the Skees[es] and
Frazee lived was experiencing record[-]breaking levels of rain. It
was the rainiest and wettest that [the] Skees[es] had
seen . . . since the[y] first moved into the home.
44. The Skees[es] pumped water [from] the open hole closer to
Frazee’s property onto the surface in the direction of Frazee’s
property.
***
46. . . . It was established that . . . the water was effluent coming
from the Skees[es] septic system. Effluent is water that has
drained from a septic system. . . . Ron Noles ordered the
Skees[es] to stop pumping. . . . However, the effluent had been
pumped on[to] Frazee’s property for approximately 10 days.
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***
Conclusion[s] of Law[]
1. A Nuisance is defined as “[w]hatever is; (1) injurious to
health; (2) indecent; (3) offensive to the senses; or (4) an
obstruction to the free use of property; so as essentially to
interfere with the comfortable enjoyment of life or property is a
nuisance, and the subject of an action.” Ind[.] Code [§] 32-30-6-
6. The discharge of sewage under the property of Frazee and the
pumping of ground water containing effluent and sewage onto
the surface of Frazee’s property is a nuisance per se. . . .
***
3. The original four[-]inch clay drain . . . running under and
draining the Skees, County, and Frazee [P]arcels wa[s,] and at all
times and remained, a mutual drain under Indiana Code
[Section] 36-9-27[-2.]
4. The mutual drain’s use continued throughout the time period
at issue [because] at least two (2) of the three (3) original property
owners used and were benefited by the mutual drain at all times
without interruption or abatement.
5. [The] Skees[es] never abandoned the use of the mutual drain
but suspended its use temporarily at the direction of the
Tippecanoe County Health Department while intending to
resume normal use when the septic problem was solved.
6. Pursuant to [Indiana Code Section] 36-9-27[-2], a property
owner is obligated to fix an obstruction, or break, in the portion
of mutual drain on their [sic] property.
***
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8. [The] Skees[es are] entitled to the receipt of compensatory
damages . . . as follows:
a. Delay due to work stoppage for two (2) hours[:] $400.00
b. Flood damages to personal property and furnishing[:] $899.00
Total Compensatory Damages[:] $1299.00
9. [The] Skees[es are] entitled to three (3) times the amount of
compensatory damages outlined in paragraph 8 above pursuant
to [Indiana Code Section] 34-24-3-1 and [Indiana Code Section]
35-43-2-2(a)(1) and (2)(version a) for a total amount of treble
damages [of] $3897.00
10. Pursuant to [Indiana Code Section] 34-24-3-1[](3) [the]
Skees[es] are also entitled to a reasonable attorney fee[,] which is
found to be in the amount of $1299.00
The Court finds for [Frazee] [a]s to her claim in the sum of
$5,000 together with attorney[’s] fees of $1667.00 for a total of
$6667.00[. A]fter set off for Defendant[s’] counter-claim[,]
judgment is entered for [Frazee] against [the Skeeses] in the sum
of $1471.00 plus court cost[s] of $104.00.
Appellant’s App. at 13-21. This appeal ensued.
Discussion and Decision
Overview & Standard of Review
[22] Frazee challenges the trial court’s findings and conclusions thereon, which it
entered pursuant to Trial Rule 52(A).
When a party has requested specific findings of fact and
conclusions thereon pursuant to Ind. Trial Rule 52(A), the
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reviewing court may affirm the judgment on any legal theory
supported by the findings. In addition, before affirming on a
legal theory supported by the findings but not espoused by the
trial court, the appellate court should be confident that its
affirmance is consistent with all of the trial court's findings of fact
and the inferences drawn from the findings. In reviewing the
judgment, we must first determine whether the evidence supports
the findings and second, whether the findings support the
judgment. The judgment will be reversed only when clearly
erroneous. Findings of fact are clearly erroneous when the record
lacks any evidence or reasonable inferences from the evidence to
support them. To determine whether the findings or judgment
are clearly erroneous, we consider only the evidence favorable to
the judgment and all reasonable inferences flowing therefrom,
and we will not reweigh the evidence or assess witness
credibility.
Capps v. Abbott, 897 N.E.2d 984, 986 (Ind. Ct. App. 2008) (citations omitted).
[23] Frazee’s arguments on appeal involve various aspects of Indiana’s drainage
statutes but primarily concern how Indiana Code Section 36-9-27-2 defines a
“mutual drain” and a “private drain.” That provision states:
“Mutual drain” means a drain that:
(1) is located on two (2) or more tracts of land that are
under different ownership;
(2) was established by the mutual consent of all the
owners; and
(3) was not established under or made subject to any
drainage statute.
***
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“Private drain” means a drain that:
(1) is located on land owned by one (1) person or by two
(2) or more persons jointly; and
(2) was not established under or made subject to any
drainage statute.
Ind. Code § 36-9-27-2.
[24] Thus, this appeal requires that we interpret a statute. As we have explained,
[s]tatutory interpretation is a function for the courts, and our goal
in statutory interpretation is to determine, give effect to, and
implement the intent of the legislature as expressed in the plain
language of its statutes. The first rule of statutory construction is
that words and phrases shall be taken in their plain, or ordinary
and usual, sense.
Clark Cnty. Drainage Bd. v. Isgrigg, 966 N.E.2d 678, 680 (Ind. Ct. App. 2012),
aff’d on reh’g, 966 N.E.2d 678.
[25] In previously interpreting Indiana Code Section 36-9-27-2, we have held that “a
mutual drain is an artificial drain, actually constructed, built[,] or created by the
mutual consent of the landowners through whose property it runs.” Suburban
Homes Corp. v. Harders, 404 N.E.2d 629, 632 (Ind. Ct. App. 1980). A natural
watercourse is not a mutual drain. Id. And we have concluded that a private
drain constructed on a common estate, which is subsequently subdivided,
transforms into a mutual drain at the moment of subdivision. Johnson v.
Kosciusko Cnty. Drainage Bd., 594 N.E.2d 798, 803 (Ind. Ct. App. 1992).
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[26] With this in mind, Frazee presents us with a plethora of arguments. Distilled,
Frazee asserts that the trial court erred when it concluded that the subsurface
drain was a mutual drain. Instead, she contends the Skeeses unlawfully
connected an illegal sewage drain to her private drain. But even if the
subsurface drain was a mutual drain when established, she contends, the
Skeeses abandoned their rights to that drain. Thus, Frazee reasons, the
subsurface drain was either (1) always her private drain or (2) became her
private drain when the Skeeses allegedly abandoned it. As such, her argument
continues, the Skeeses trespassed when they later connected their perimeter
drain to the subsurface drain.
[27] In light of the above, we address Frazee’s specific arguments as follows: (1)
whether the subsurface drain was a mutual drain when it was established; (2)
whether the Skeeses abandoned any interests they had in the subsurface, mutual
drain; (3) whether the Skeeses trespassed onto Frazee’s property when they
connected their perimeter drain to the subsurface drain; and (4) whether Frazee
alone is responsible for the costs to repair the portion of the mutual drain
located under her property. After addressing those arguments, we also consider
(5) whether the trial court erred when it concluded that Frazee had committed a
criminal trespass when she disconnected the Skeeses’ sump pump the second
time, and (6) whether the trial court abused its discretion when it awarded
attorney’s fees to the Skeeses.
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Issue One: Mutual Drain When Established
[28] Frazee contends that the trial court’s conclusion that the subsurface drain was a
mutual drain when established is clearly erroneous. In this regard, she asserts
that the trial court’s conclusion is inextricably premised upon the following
purportedly erroneous findings of fact: (1) a single, four-inch, clay-tile drain
had historically served the three properties involved; (2) the subsurface drain
began at or near Highway 52; and (3) the subsurface drain diverted water from
the Skees Parcel. In addition, Frazee asserts that the trial court erred as a
matter of law when it determined that the subsurface drain was a mutual drain
when established because no evidence was offered that the subsurface drain was
created by the mutual consent of all landowners served by the drain.
[29] Frazee’s first two claims of error challenge two of the trial court’s findings of
fact: (1) a single, four-inch, clay-tile drain had historically served the three
properties involved; and (2) the subsurface drain began at or near Highway 52.
However, these findings do not implicate the statutory definition of a mutual
drain, which speaks only of property ownership, consent, and establishment of
the drain. See I.C. § 36-9-27-2. The statute does not concern the diameter of a
drain pipe or its exact starting point on a particular tract of land. See id. Thus,
even if the trial court’s findings in this regard were clearly erroneous, the
findings do not warrant reversal because “they amount to mere surplusage and
add nothing to the trial court’s decision.” Bell v. Clark, 653 N.E.2d 483, 489
(Ind. Ct. App. 1995). We, therefore, do not consider them further.
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[30] Frazee’s next argument, that the subsurface drain diverted water from the Skees
Parcel, presents a mixed question of law and fact. With regard to the facts,
Frazee contends that the portion of the subsurface drain located on the Skees
Parcel diverted only sewage, not water, from the Skeeses’ property. Instead,
she asserts, the swale—a natural watercourse, which is not a mutual drain, see
Harders, 404 N.E.2d at 632—provided the sole method of water drainage from
the Skees Parcel. Frazee reasons that this fact, as a matter of law, precluded the
classification of the subsurface drain as a mutual drain. In other words, Frazee
contends that the subsurface drain was not a single mutual drain but actually
two separate, connected drains: an illegal sewage drain on the Skees Parcel that
unlawfully connected to a separate private drain on the Frazee Parcel. We
disagree in both respects.
[31] Although the natural swale did drain surface water from the Skees Parcel, the
evidence before the trial court showed that the subsurface drain also diverted
ground water from the property. Indeed, when the Skeeses disconnected from
the subsurface drain, the water table rose, in part, because ground water could
not drain as effectively. Thus, the trial court properly determined that the
subsurface drain diverted water, not simply sewage, from the Skees Parcel. We,
therefore, hold that the subsurface drain was a single drain that happened to
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contain illegal sewage. It was not the combination of a private drain and an
illegal sewer.10
[32] Finally, Frazee contends no evidence was offered that the subsurface drain was
created by the mutual consent of all owners when originally installed and, as a
result, that the trial court’s conclusion is clearly erroneous as a matter of law.11
However, we hold that the trial court was presented with sufficient evidence to
determine that the subsurface drain, when established, satisfied the statutory
definition of a mutual drain under Indiana Code Section 36-9-27-2, which,
again, defines a subsurface drain as a drain that:
(1) is located on two (2) or more tracts of land that are under
different ownership;
(2) was established by the mutual consent of all the owners; and
(3) was not established under or made subject to any drainage
statute.
[33] The parties agree that the subsurface drain was not made subject to any
drainage statute. And, in 2011, the subsurface drain was located on more than
two tracts of land: the Frazee Parcel, the Skees Parcel, and the County Parcel.12
10
To the extent Frazee argues that the presence of illegal sewage in a drain automatically converts that drain
into a sewer, we disagree.
11
Frazee also asserts that no evidence was offered that the present owners consented to the mutual drain.
But Indiana Code Section 36-9-27-2 does not require present consent; it requires consent when established.
See I.C. § 36-9-27-2.
12
Again, the Dearths also had tied into the subsurface drain.
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Thus, Frazee disputes whether the drain was established with the mutual
consent of all owners.
[34] Although no evidence was offered regarding original ownership of the land,
much less whether all original owners consented to the establishment of a
mutual drain, the trial court could nevertheless infer the element of consent to
establish a mutual drain. The evidence before the trial court demonstrated that
the subsurface drain was installed, as one contiguous system, approximately
seventy to eighty years prior to 2011, long before either the Skeeses or Frazee
acquired their respective properties. And, in 2011, the drain passed through the
land of three separate property owners, all of whom benefitted from the
drainage provided.
[35] It is reasonable to conclude that a nonregulated, subsurface drain that predates
the current, diverse ownership of the serviced parcels was, when placed, either
(1) a mutual drain established by the mutual consent of all affected owners or
(2) a private drain on a common estate. If the drain was originally created as a
private drain on a once-common estate, it converted to a mutual drain when the
land was subdivided. See Johnson, 594 N.E.2d at 803. And, as our holding in
Johnson suggests, once a private or mutual drain is established, its benefits run
with the properties it serves. See id. at 803. Thus, we do not find Frazee’s
argument persuasive, and we affirm the trial court’s conclusion that the
subsurface drain was a mutual drain when originally installed.
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Issue Two: Abandonment
[36] Next, Frazee contends that, even if the trial court correctly concluded that the
subsurface drain was a mutual drain when established, it erred when it
concluded that the Skeeses did not abandon their rights to that drain when they
severed their connection in July 2011 with the installation of their new septic
system.13 She asserts that, in contrast to the trial court’s finding that the
severance was temporary, the evidence illustrates an intent to permanently
abandon the subsurface drain. Specifically, to support her argument, Frazee
references the placement of the boulder inside of the hole and atop the severed
drain and the approximately six-month period when the Skees Parcel was
disconnected from the subsurface drain.
[37] But Frazee does not identify the legal right—for example, a contractual right, a
property right, or an easement—that the Skeeses purportedly abandoned.
Irrespective of the legal theory upon which Frazee’s argument is premised, a
showing of abandonment requires that one prove an intent to abandon, and
intent is ordinarily a question of fact for the trial court. See, e.g., Rogier v. Am.
Testing and Eng’g Crop., 734 N.E.2d 606, 619 (Ind. Ct. App. 2000), trans. denied;
Right Reason Publ’ns v. Silva, 691 N.E.2d 1347, 1351 (Ind. Ct. App. 1998);
Consol. Rail Corp., Inc. v. Lewellen, 682 N.E.2d 779, 783 (Ind. 1997).
13
Insofar as Frazee contends that the subsurface drain ceased to be a mutual drain when the Skeeses severed
their connection, her argument is not supported by cogent reasoning. Ind. Appellate Rule 46(A)(8)(a). And,
as the trial court found, the subsurface drain continued to service the County Parcel, in addition to the Frazee
Parcel, after the Skeeses disconnected in July 2011, which means that the subsurface drain was still “located
on two (2) or more tracts of land that are under different ownership.” I.C. § 36-9-27-2.
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[38] From the evidence presented, the trial court could reasonably conclude that the
Skeeses did not intend to permanently abandon their rights in the subsurface
drain. First, the Skeeses left the hole open where they disconnected the
subsurface drain to allow water to continue to flow into the hole at least in part
to gauge whether the drain still actively serviced their property. And, second,
while ground water on the Skees Parcel could not openly flow into the
subsurface drain after the disconnection, it could leach into the drain through
the clay tile. Finally, the Skeeses reconnected to the subsurface drain when
they constructed their perimeter drain in January 2012. This evidence supports
the reasonable inference and, therefore, the trial court’s conclusion that the
Skeeses’ severance from the subsurface drain in July 2011 did not evince an
intent to permanently abandon their access to that drain. Therefore, the trial
court’s conclusion that the mutual drain remained a mutual drain at all relevant
times is not clearly erroneous.14
Issue Three: Trespass and the Perimeter Drain
[39] Because we affirm the trial court’s conclusions that the subsurface drain was
and remained a mutual drain, we also affirm the court’s conclusion that the
Skeeses did not commit a trespass when they connected their perimeter drain to
the subsurface drain.
14
We, therefore, reject Frazee’s argument that the subsurface drain was a private drain instead of a mutual
drain. See I.C. § 36-9-27-2 (defining a private drain, in relevant part, as one that “is located on land owned by
one (1) person or by two (2) or more persons jointly.”).
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Issue Four: Costs of Repair
[40] Next, Frazee contends that the trial court erred when it concluded that she was
solely responsible for the costs of the repairs made to the portion of the
subsurface drain on her property.15 In this respect, the trial court found and
concluded:
12. Frazee was responsible to repair any breaks in the mutual
[drain] on her property.
***
36. During the time the problem was being solved, Frazee built a
second pole barn in her barn lot in a location [that] sits atop the
mutual drain on her property and sits in the path of the natural
drainage swale[,] which has long existed on the Frazee Parcel.
***
37. Frazee also chose to replace the original 4” clay drain pipe
on her property with a 6’ [sic] plastic pipe to the southwest of her
second pole barn. Skees[es] are not liable for claimed damages
on this issue since the repairs to her mutual drain on her property
were her responsibility and done for her own convenience.
***
15
We reject Frazee’s argument that, under Indiana Code Chapter 36-9-27.4, a landowner must always
petition the drainage board before repairing a mutual drain. That provision provides a landowner benefited
by a mutual drain with a mechanism to have an obstruction, “located outside the person’s tract” but affecting
the drainage on that tract, removed if the owner of the land on which the obstruction is found refuses, after a
request, to remove it. I.C. § 36-9-27.4-9. The statute does not require Frazee to petition the drainage board
to remove obstructions found on her own land, and the Skeeses, whose drainage was not affected by the
obstructions to the subsurface drain on the Frazee Parcel, did not need to petition the local drainage board.
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Conclusion[s] of Law[]
***
6. Pursuant to [Indiana Code Section] 36-9-27[-2], a property
owner is obligated to fix an obstruction, or break, in the portion
of mutual drain on their property.
Appellant’s App. at 14, 17, 19-20.
[41] Frazee asserts that the trial court erred as a matter of law because Indiana Code
Chapter 36-9-27 does not contain a provision “that obligates a property owner
to fix an obstruction or break in a mutual [drain] on their [sic] property.”
Appellant’s Br. at 37. We agree with Frazee that a property owner is not
necessarily liable for the full costs of repairs performed on a portion of a mutual
drain located on that person’s land. In this respect, although the subsurface
drain is not a regulated drain,16 we find instructive our supreme court’s opinion
in Crowel v. Marshall County Drainage Board, 971 N.E.2d 638 (Ind. 2012), which
considered the assessment of costs for the maintenance of a regulated drain to
the property owners benefited by that drain.
[42] When a regulated drain is deemed in need of periodic maintenance under
Indiana Code Section 36-9-27-38, the local drainage board must “prepare a
schedule of assessments” that, among other things, apportions costs to the
16
A regulated drain is “an open drain, a tiled drain, or a combination of the two.” I.C. § 36-9-27-2. An
open drain is “a natural or artificial open channel that: (1) carries surplus water; and (2) was established
under or made subject to any drainage statute,” and a tiled drain is “a tiled channel that: (1) carries surplus
water; and (2) was established under or made subject to any drainage statute.” Id.
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landowners benefited by the drain “based upon the benefit accruing to each
tract of land from the maintenance.” I.C. § 36-9-27-39(2). In creating the
schedule and in apportioning costs, the drainage board may consider:
(1) the watershed affected by the drain to be constructed,
reconstructed, or maintained;
(2) the number of acres in each tract;
(3) the total volume of water draining into or through the drain to
be constructed, reconstructed, or maintained, and the amount of
water contributed by each land owner;
(4) the land use;
(5) the increased value accruing to each tract of land from the
construction, reconstruction, or maintenance;
(6) whether the various tracts are adjacent, upland, upstream, or
downstream in relation to the main trunk of the drain;
(7) elimination or reduction of damage from floods;
(8) the soil type; and
(9) any other factors affecting the construction, reconstruction, or
maintenance.
I.C. § 36-9-27-112.
[43] In Crowel, the drainage board assessed costs to Crowel for the repair of a
regulated drain that did not touch his property, and he appealed. 971 N.E.2d at
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639. Crowel’s property sat at the high end of the drain’s watershed, and his
property had not flooded in the past. Id. at 641. Thus, he argued that he
received no benefits from the regulated drain, and, therefore, the local drainage
board, as a matter of law, could not assess any costs to him for periodic
maintenance of the drain. Id. at 643.
[44] Our supreme court, however, rejected Crowel’s claims. In so doing, the court
noted that surface water runoff originating at Crowel’s property contributed to
flooding in the watershed, which the regulated drain was designed to
ameliorate, and held that “a parcel of land at the high end of a watershed that
has adequate drainage due to natural surface-water runoff can be benefited by
the reconstruction of a regulated drain at the lower end of the watershed.” Id.
at 646. Further, the court stated that, “the fact that the Legislature included
these criteria on the [Indiana Code Section 36-9-27-112 factors] list expresses its
understanding that all property in a watershed is benefited when a drain serving
that area is reconstructed, as well as its intent to spread the assessment across all
of those benefited properties.” Id.
[45] Although mutual drains are not subject to Indiana Code Chapter 36-9-27 and
although a mutual drain’s repairs are not assessed by a local drainage board,
nonetheless, our supreme court’s logic in Crowel applies equally to mutual
drains. Thus, we hold that, at the least, the tracts of land under which a mutual
drain is located benefit from the existence of that drain. Thus, a landowner is
not necessarily responsible for the total cost of repairs made to the portions of
the drain underlying that landowner’s property, provided that other landowners
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receive a benefit from those repairs. And a trial court may exercise its equitable
authority to apportion the costs of a needed repair among the owners of the
land under which the mutual drain lies. In apportioning costs, the trial court
could consider, but is not limited to, the factors delineated by the legislature in
Indiana Code Section 36-9-27-112.
[46] We disagree with Frazee, however, that the trial court here concluded that a
landowner is always solely responsible for repairs made to a portion of a mutual
drain located on his or her property. Instead, the trial court exercised its
equitable authority when it assigned the full cost of the repairs made to the
subsurface drain to Frazee. The evidence most favorable to the judgment
demonstrates that the Skeeses were not actually affected by the broken portion
of the subsurface drain on the Frazee Parcel or by the route that drain, once
repaired, traveled. In contrast, Frazee needed to repair the subsurface drain to
complete the installation of her geothermal system. At that time, Frazee did
not know that the Skeeses’ sewage was leaking onto her property through the
break in the drain. And, moreover, Frazee built her second barn directly in the
path of the swale, and Frazee damaged the drain with an auger during the
construction of her barn and then rerouted the drain around the barn.
[47] Despite this evidence, Frazee asserts that she rerouted the subsurface drain
because the Skeeses had not complied with the abatement order during the
remediation period, which meant that sewage was flowing into the barn’s
construction zone. This, she maintains, delayed construction. And she states
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that she had to replace the length of the subsurface drain because more water
was sent to her property by the Skeeses’ new perimeter drain.
[48] But these arguments require us to reweigh the evidence, which we will not do.
Indeed, Frazee does not explain why she could not simply have repaired or
replaced the existing subsurface drain in the same location where she had
damaged it, which also would have kept sewage out of her construction zone.
Moreover, the evidence most favorable to the judgment indicates that the
Skeeses’ installation of the perimeter drain did not increase the downstream
burden placed on the subsurface drain. And, finally, with respect to the curtain
drain that Frazee installed around her barns after the connection of the
perimeter drain to the subsurface drain, the court could reasonably infer that the
curtain drain’s purpose was to divert the surface water collected by the swale,
which would otherwise have traveled directly to Frazee’s barns.
[49] Thus, the evidence and reasonable inferences support the trial court’s finding
that Frazee made repairs and changes to the subsurface drain for her own
convenience—to construct the barn in the path of the swale. Further, the
court’s findings support its conclusion that Frazee was solely responsible for the
repairs made to the subsurface drain.
Issue Five: Frazee’s Criminal Trespass,
Treble Damages, and Attorney’s Fees
[50] Frazee next challenges the trial court’s conclusion that she had committed
criminal trespass when she entered onto the Skees Parcel and disconnected the
sump pump the second time. The trial court concluded that Frazee committed
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trespass as defined by Indiana Code Section 35-43-2-2(a)(1), which, in 2011,
stated:
(a) A person who:
(1) not having a contractual interest in the property,
knowingly or intentionally enters the real property of
another person after having been denied entry by the other
person or that person’s agent;
***
commits criminal trespass . . . .
In relevant part, a person is denied entry under subdivision (a)(1) when “the
person has been denied entry by means of . . . [a] personal communication, oral
or written.” I.C. § 35-43-2-2(b)(1).
[51] Frazee asserts that the trial court’s conclusion is clearly erroneous because the
record contains no evidence that the Skeeses denied Frazee entry onto their
land. The Skeeses counter this argument by noting that Frazee testified at trial
on cross-examination that, on November 28, she trespassed to unplug the pump
both times. Further, they contend that they warned Frazee to not unplug the
sump pump after she did so the second time because they were pumping water
from the hole by order of the Health Department.
[52] But the record does not demonstrate that the Skeeses denied Frazee access onto
their property before she entered on November 28 to unplug the pump the
second time, a prerequisite to criminal trespass. Instead, when Frazee was
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asked by opposing counsel whether she “trespassed on the Skees[es’] property,”
Frazee answered, “Yes, I did.” Tr. at 74. However, a colloquial utterance of
the word “trespass”—namely, her agreement that she entered onto the Skees
Parcel without the Skeeses’ consent—does not suffice to prove all of the
elements of the multifaceted criminal trespass statute. Moreover, the record is
clear that the Skeeses told Frazee not to unplug the sump pump only after
Frazee had unplugged it for the second time on November 28. But for that
entry to have been the criminal trespass, the statute required the personal
communication to precede the entry. I.C. § 35-43-2-2(b)(1). Thus, the trial
court’s conclusion that Frazee committed criminal trespass pursuant to IC § 35-
43-2-2(a)(1) is not supported by the record and is clearly erroneous.17
[53] Because the trial court erred when it concluded that Frazee committed criminal
trespass, it also erred when it awarded treble damages and attorney’s fees to the
Skeeses under the Crime Victim’s Relief Act in that an award of attorney’s fees
under the Act requires proof of a criminal offense by a preponderance of the
evidence. See Harlan Bakeries, Inc. v. Muncy, 835 N.E.2d 1018, 1037 (Ind. Ct.
App. 2005). The trial court erred when it concluded that Frazee had committed
a criminal trespass and, thus, also erred when it awarded treble damages and
17
Indiana Code Section 35-43-2-2(a)(4) also defines a criminal trespass as “knowingly or intentionally
interfer[ing] with the possession or use of the property of another person without the person’s consent.”
Although this court can affirm the trial court on any legal theory supported by the findings, the parties have
not briefed this issue for our consideration. We, therefore, decline to consider it. See Mitchell v. Mitchell, 695
N.E.2d 920, 923-24 (Ind. 1998) (“[B]oth parties expressed their views [in their briefs] on the correct rule of
law to the Court of Appeals. Under these circumstances, there is no surprise and no risk of the appellate
court’s introducing an unvetted legal theory.”).
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attorney’s fees to the Skeeses based on a trespass. We, therefore, reverse the
court’s judgment on this issue.
Issue Six: Frazee’s Attorney’s Fees
[54] The Skeeses cross-appeal and contend that the trial court abused its discretion
when it awarded attorney’s fees to Frazee in the absence of legal authority to do
so. An award of attorney’s fees is typically unavailable “absent an agreement
between the parties, statutory authority, or other rule to the contrary.” Smyth v.
Hester, 901 N.E.2d 25, 32 (Ind. Ct. App. 2009), trans. denied. An additional
exception to this rule is a party’s “obdurate behavior,” which occurs when
another party is “dragged into baseless litigation” or the initial party “fail[s] to
dismiss [a] suit once its baseless nature is discovered.” Wernke v. Halas, 600
N.E.2d 117, 123 (Ind. Ct. App. 1992).18
[55] In light of these rules, we hold that the trial court abused its discretion when it
awarded attorney’s fees to Frazee. The parties did not have an agreement that
provided for attorney’s fees, and, because the trial court held that the Skeeses
did not trespass onto Frazee’s property, a conclusion which we affirm above,
the court lacked statutory authority under the Crime Victim’s Relief Act to
award attorney’s fees. Further, the trial court found that the Skeeses had
complied with all orders from the Health Department and were fully
cooperative in addressing the issues with their septic system. Thus, the
18
Frazee’s attempts to distinguish this authority are not supported by cogent reasoning. See App. R.
46(A)(8)(a).
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obdurate behavior exception also does not apply here. Therefore, we reverse
the award of attorney’s fees to Frazee.
Conclusion
[56] We affirm the trial court’s conclusions that the subsurface drain was and
remained a mutual drain and that the Skeeses did not trespass when they
connected their perimeter drain to the subsurface drain. However, we reverse
the trial court’s conclusion that Frazee committed criminal trespass, and,
therefore, we also reverse its award of treble damages and attorney’s fees to the
Skeeses. Finally, we reverse the trial court’s award of attorney’s fees to Frazee
as contrary to law.
Affirmed in part and reversed in part.
Mathias, J., and Bradford, J., concur.
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