Indiana Water Law – What is the common enemy doctrine?

The common enemy doctrine is a rule under Indiana law providing that surface water is a common enemy and each landowner can deal with it in a manner which suits their convenience. In many situations, the common enemy doctrine permits property owners to divert or change the course of surface water to flow away from their property by improving their land by changing the grade of the land or eliminating ground absorption. What does this mean for property owners and their neighbors?

Property owners may not artificially collect and concentrate surface water and then cast it on their neighbor’s property. In Liter’s of Indiana, INC. v. Bennett, the Indiana Court of Appeals found that the construction of an undersized detention basin to prevent flooding caused the water to be cast in concentrated volumes on to neighboring property. Id. at 297. Therefore, a claim against Liter’s for flooding caused by their development of a subdivision was not prevented by the common enemy doctrine. Id. at 300.

In N.G. Hatton Trust v. Young, property owners, the Youngs, raised their ground level by several feet to build a new house. Following construction, during periods of heavy rainfall, water would flow across the driveway before accumulating in a rock bed and then crossing into a neighbor’s property. The neighbor brought an action against the Youngs for damages to property from the runoff. The Indiana Court of Appeals ruled in favor of the Youngs because there was no evidence that they were collecting the water and casting it onto the neighbor’s land.

The common enemy doctrine only applies to surface water. Surface water is defined under Indiana law as water from falling rain or melting snow which is diffused over the surface of the ground, or which temporarily flows upon or over the natural slope of the ground. In other words, the doctrine does not apply to a property owner who redirects a stream or creek so that it runs onto someone else’s property. Additionally, even if the water contains some amount of sediment or rocks, it may still be considered surface water.

The common enemy doctrine can be asserted as a defense in various actions against property owners. These actions may include negligence, nuisance, or trespass. If you are interested in pursuing an action against a neighbor for damage to your property or if you are a party to a similar suit, reach out to one of our attorneys at McNeelyLaw LLP by calling (317) 825-5110.

This McNeelyLaw LLP publication should not be construed as legal advice or legal opinion of any specific facts or circumstances. The contents are intended for general informational purposes only, and you are urged to consult your own lawyer on any specific legal questions you may have concerning your situation.