Court of Appeals of Indiana | Opinion 19A-MI-1486 | November 22, 2019 Page 1 of 19

ATTORNEY FOR APPELLANTS

Jeffrey O. Meunier

Carmel, Indiana

ATTORNEY FOR APPELLEE

Steven A. Holt

Holt Legal

Noblesville, Indiana

IN THE

COURT OF APPEALS OF INDIANA

Kip Bergman, Scot Gasho, Jane 

Harper, Philip Overdorf, Brent 

Snow, and George Tebbe,

Appellants-Petitioners,

v.

Big Cicero Creek Joint Drainage 

Board,

Appellee-Respondent.

November 22, 2019

Court of Appeals Case No.

19A-MI-1486

Appeal from the Tipton Circuit 

Court

The Honorable Mark Dudley, 

Special Judge

Trial Court Cause No.

80C01-1710-MI-340

Najam, Judge.

Statement of the Case

[1] Kip Bergman, Scot Gasho, Jane Harper, Philip Overdorf, Brent Snow, and 

George Tebbe (collectively “Landowners”) filed a petition for judicial review of 

a decision by the Big Cicero Creek Joint Drainage Board (“the Board”)
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regarding a reconstruction project. The trial court affirmed the Board’s 

decision. Landowners appeal and raise three issues for our review:

1. Whether the trial court erred when it found that the Board 

was not prohibited from funding a reconstruction project 

through a loan to be repaid with excess funds in a 

maintenance fund.

2. Whether the trial court erred when it found that the Board 

was not required to issue bonds to pay for the

reconstruction project.

3. Whether the trial court erred when it found that 

Landowners’ claim that the Board was improperly formed 

was barred under the doctrine of laches.

[2] We affirm.

Facts and Procedural History

[3] Landowners own parcels of real property in Tipton and Atlanta, Indiana. Their 

parcels are located within the Big Cicero Creek watershed (“the watershed”). 

The Board, which was formed in 1991, is a “multi-county joint drainage board 

consisting of five members.” Appellants’ App. Vol. 2 at 41. On October 17,

2014, the Board mailed a notice to all landowners in the watershed, including 

Landowners, stating in relevant part that a maintenance report and schedule of 

assessments had been filed and were available for public inspection and that a 

public hearing was scheduled for November 19. Following the public hearing, 

the Board issued written findings and an order “adopting and approving the 
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maintenance report and schedule of assessments as reported by the County 

surveyors in their report.” Id. at 19.

[4] In that 2014 report, surveyors from four counties in the watershed

recommended a significant increase in annual maintenance fund assessments

and an increase in the maintenance fund balance. In particular, the surveyors 

stated that, “[w]ith this increase in the available balance in the drain fund the 

Board would then be able to utilize maintenance funds to fully pay or partially 

pay for future reconstruction projects.” Id. at 140. The surveyors concluded 

that the plan “would reduce or eliminate assessments for future reconstructions on Big 

Cicero Creek.” Id. (emphasis added). Landowners did not seek judicial review 

of the Board’s November 2014 order.

[5] In 2017, the Board asked the Tipton County surveyor to prepare a report

regarding a plan for “partial reconstruction” of the Big Cicero Creek Open 

Drain System (“the drain system”). Id. at 19. In that 2017 report, the Tipton 

County surveyor proposed a partial reconstruction of the drain system projected 

to cost $4.7 million. He recommended that “no additional assessments be 

sought, that the project should be funded by an outside source, with repayment 

occurring from a portion of the current revenue stream that is captured under 

the maintenance assessment for the drain[.]” Id. at 63.

[6] Thereafter, on September 15, the Board mailed notices to affected landowners 

that a hearing would be held regarding the proposed partial reconstruction of 

the drain system. The Board also made available to the public the Tipton 
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County surveyor’s report and the schedule of assessments. Following the 

public hearing on the partial reconstruction plan on September 20, the Board, in 

a decision dated September 22, adopted and approved the surveyor’s 

recommendations and found in relevant part as follows:

3. No additional assessments for Partial Reconstruction shall be 

levied against [the] public;

4. Funding for the project shall be obtained from either private 

or public sources for the partial reconstruction, with repayment 

coming from a portion of the yearly maintenance assessment 

until the debt is paid in full; not to exceed more than 75 percent 

of the annual assessment in any given year.

Id. at 167.

[7] On October 10, Landowners timely filed their petition for judicial review of the 

Board’s September 22 decision. In particular, Landowners asserted that

[t]he Big Cicero Creek Joint Drainage Board’s decision was 

wholly arbitrary, capricious, unlawful, an abuse of discretion, not 

in accordance with the law and in excess of statuary [sic] 

jurisdiction, authority, limitations, or short of statuary [sic] right. 

In addition, the Big Cicero Creek Joint Drainage Board acted 

without observance of procedure required by law and its decision 

is unsupported by substantial evidence. 

Id. at 43. Landowners also alleged that, because “the Board’s first meeting [in 

1991] took place 35 days after the meeting was required to take place” pursuant 

to statute, the Board was “improperly formed” and must be disbanded. Id. at 

24-25.
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[8] Following a hearing on Landowners’ petition for judicial review on February 5, 

2019, the trial court denied the petition. In its findings and conclusions, the 

trial court stated in relevant part as follows:

INTRODUCTION

The court’s presumption [sic] i[n] this case arose for two (2) 

primary reasons. The first is the [Landowners] disagree with the 

reconstruction plan adopted by [the Board] because they feel very 

strongly it will not address or alleviate the flooding on Big Cicero 

Creek and as a corollary to this feeling is that they should not be 

forced to pay for it. The second reason this case arose is that the 

[Landowners] feel that the Board was not fully transparent with 

its intentions. The Board’s intention, in 2014, was to fund a 

future reconstruction of Big Cicero Creek via an increased 

maintenance assessment. The Board adopted a maintenance 

assessment in 2014 knowing that it was larger than what was 

needed for annual maintenance. The Board intended to create a 

surplus over a number of years and then transfer 75% of that 

surplus to use as a down payment on a partial reconstruction of 

Big Cicero Creek. [Landowners], among others, paid the 

maintenance assessment and the Board received those payments 

fully intending to use them for reconstruction purposes at a later 

date. No one asked for judicial review or otherwise appealed the 

Board’s 2014 increased maintenance assessment and the issue of 

the propriety of that increase is not at issue today. The issue is 

whether the Board may transfer excess from the maintenance fund to its 

reconstruction fund. The established statutory scheme allows the 

collection of up to eight (8) times the estimated annual cost of 

periodic maintenance of a drain and then later transfer 75% of 

that excess to a reconstruction fund. . . .

* * *

FINDINGS OF FACT
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* * *

3. On September 17, 2014, the surveyors of Tipton County, 

Hamilton County, Boone County and Clinton County submitted 

a report to the Board outlining their request that the Board 

increase the maintenance assessments as they had not been raised 

in twenty-one (21) years and that the solutions for solving issues 

have outstripped the current maintenance funds and were not 

adequate to keep up with the maintenance needs of the drain. 

The surveyors also requested the Board increase the limitation on the 

maintenance fund to up to 8 times the annual maintenance assessment as 

allowed in Section 43 of the Indiana Drainage Code as this would allow 

the Board to utilize maintenance funds to fully pay or partially pay for 

future reconstruction projects as Section 45.5 of the Drainage Code 

allowed a transfer of up to 75% of the maintenance fund to pay 

for reconstruction projects and eliminate assessments for future 

reconstruction projects on Big Cicero Creek.

4. On October 17, 2014, Notice was sent to landowners stating, 

in relevant part “You are hereby notified that the maintenance 

report of the Tipton, Hamilton, Boone & Clinton County 

Surveyors and the schedule of assessments made by the Big 

Cicero Creek Drainage Board have been filed and are available 

for public inspection in the offices of the Tipton, Hamilton, 

Boone & Clinton County Surveyors.” The notice also provided a 

link to the Surveyors’ Report to the Board. The Notice also 

stated that a public hearing was scheduled for November 19,

2014, on the maintenance report and schedule of assessments.

5. The Board held a public hearing on November 19, 2014, and 

issued “Written Findings and Order” adopting and approving the 

maintenance report and schedule of assessments as reported by 

the County surveyors in their report.

6. [There is no evidence] that any petition for judicial review was 

filed following the November 19, 2014 [decision] of the Board 

adopting and approving the maintenance report.
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* * *

9. On September 20, 2017, after timely notice to the public 

regarding reconstruction allocating current and future 

maintenance assessment[s], the Board held a public hearing 

regarding the surveyor’s reconstruction report and schedule of 

assessments for a reconstruction project on the Big Cicero Creek 

drain.

* * *

13. At the conclusion of the September 20, 2017, public hearing, 

the Board approved and adopted the surveyors’ reconstruction 

findings and proposed a schedule of assessments.

14. On October 10, 2017, [Landowners] timely filed a Petition 

for Judicial Review of the Board’s September 20, 2017 decision. 

Specifically, in their Verified Petition for Judicial Review, 

[Landowners] contended:

a. The Board should be disbanded;

* * *

i. The assessment amounts were intentionally overstated to 

accumulate funds for an ulterior use;

j. The use of a percentage of the maintenance funds to pay for a 

reconstruction project is being deliberately misapplied in this 

case;

k. The proposed financing of the project is not in compliance 

with Indiana Law;

* * *

CONCLUSIONS OF LAW
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* * *

Formation of the Big Cicero Creek Drainage Board

* * *

15. Even if this court ignored the procedural deficiencies [alleged 

by Landowners with respect to the Board’s formation in 1991],

this court finds that Indiana law does not support [Landowners’] 

request to disband the Board 27 years after its creation over 

alleged defective notices. Even if true, [Landowners’] claims are 

barred by the doctrine of laches as [Landowners’] 27-year delay 

in challenging the formation of [the] Board is inexcusable and the 

Board has operated for 27 years, completing maintenance and 

reconstruction projects on the drain, collecting maintenance 

funds, and has entered into a variety of contracts and other 

obligations such that it would be prejudiced by a

disbandment. . . .

16. Therefore, this court concludes that [Landowners’] 

contention that the Board was improperly formed due to 

improper notice is not supported by the record before the court 

on [Landowners’] Petition for Judicial Review and this basis for 

judicial review is hereby denied.

* * *

Use of Excess Maintenance Funds for Reconstruction

40. This court concludes that Section 43 of the Drainage Law 

does reveal the legislature’s intent to allow the Board to create an 

excess in the maintenance fund. Section 43 grants a drainage 

board discretion in collecting a maintenance assessment even if 

the assessment would increase the maintenance fund balance to 

four (4) times the annual cost of periodic maintenance or up to

. . . eight (8) times the annual cost of periodic maintenance (as 

long as a public hearing is held).
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41. This court concludes that Section 43 of the Indiana Drainage 

Law demonstrates the legislature’s intent to allow a Board to 

create an excess in the maintenance fund as allowing a drainage 

board to collect maintenance assessments up to eight (8) times 

the annual cost of maintenance is necessarily going to create an 

excess. [Landowners’] argument that only maintenance 

assessment excesses created in the routine collection of 

assessments were the legislature’s intent cannot be squared with 

this provision of the Drainage Law allowing the Board to

increase the maintenance assessment up to (8) times the amount 

of routine maintenance assessments. Clearly, the legislature was 

allowing the Board to create substantial maintenance excesses.

42. Since the Indiana legislature also drafted section 45.5 of the 

Drainage statute, these sections of the Indiana Drainage Law 

demonstrate the legislature’s intent to allow up to 75% of the 

maintenance fund excess created (by allowing up [to] 8 times of 

maintenance assessments to be collected) to be transferred to the

reconstruction fund. Therefore, this court concludes the Board’s 

transfer of 75% of the maintenance assessments to the 

reconstruction fund was lawful under the Indiana Drainage Law 

and it does not render the Board’s September 20, 2017, decision 

as arbitrary, capricious, unlawful, or not supported by substantial

evidence.

* * *

Financing of the Reconstruction Project

53. Finally, [Landowners] argue that the Board’s proposed 

financing of the project is not in compliance with Indiana law. 

Specifically, [Landowners] argue that if “the Board finds that the 

amount of a reconstruction project exceeds the amount that the 

owners can pay over a five (5) year period, then the only recourse

is for the Board to resolve to sell bonds per I[.]C[. §] 36-9-27-

94(a).” [Landowners] contend that because this mandatory 

statutory procedure to sell bonds was not followed, the financing 
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of the project is “totally contradictory to the provisions of the 

Indiana Drainage Code.”

54. I[.]C[. §] 36-9-27-94(a) states:

(a) Whenever the board determines by resolution 

spread upon its minutes that the cost of constructing 

or reconstructing a particular drain is in excess of that 

amount that the owners of land to be assessed may

conveniently pay in installments over a five (5) year 

period, it shall authorize the sale of bonds to finance 

the construction or reconstruction.

55. While Section 94 of the Drainage Statute requires the Board 

to issue bonds to finance certain reconstruction projects, this 

section only requires the Board to authorize the sale of bonds 

when the Board determines that the cost of reconstruction is in 

excess of the amount that owners of land to be assessed may

conveniently pay in installments over a five (5) year period. This 

court concludes the legislative intent of this section is facially 

clear. Its purpose is to prevent landowners assessed for a 

reconstruction project from having outrageously high

assessments for an expensive reconstruction project being 

amortized over a short five-year period.

56. Here, the court concludes the landowners were properly 

assessed $0 for the proposed reconstruction due to the 

unambiguously permissible transfer of excess maintenance funds 

to the reconstruction to cover the cost of the reconstruction. 

Therefore, with a proper $0 assessment to the assessed

landowners for the reconstruction, in this case, there was no need 

for the Board to determine that the assessment was more than the 

amount the assessed landowners can conveniently pay in 

installments over a five (5) year period. Consequently, pursuant 

to section 94 of the Drainage Statute, there was no need for the 

Board to authorize the sale of bonds to finance the

reconstruction.
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Id. at 15-34 (emphases added). This appeal ensued.

Discussion and Decision

Standard of Review

[9] On appeal, Landowners assert that the trial court erred when it affirmed the 

Board’s decision. In Ross v. Bartholomew County Drainage Board, this Court set 

out the applicable standard of review:

We apply a two-tiered standard of review to special findings 

entered under Trial Rule 52(A). Clouse v. Noble C[ty]. Drainage 

Bd., 809 N.E.2d 849, 857 (Ind. Ct. App. 2004), trans. denied. 

First, we determine whether the evidence supports the findings 

and second, whether the findings support the judgment. Id. We 

will set aside the trial court’s findings and conclusions only if 

they are clearly erroneous. Id. In reviewing the trial court’s entry 

of special findings, we neither reweigh the evidence nor reassess 

the credibility of the witnesses. Id. Rather, we must accept the 

ultimate facts as stated by the trial court if there is evidence to 

sustain them. Id. Findings are clearly erroneous where a review 

of the record leaves us firmly convinced that a mistake has been 

made. Id. While we defer to the trial court’s findings of fact, we 

do not defer to its conclusions of law. Schrader v. Porter C[ty]. 

Drainage Bd., 880 N.E.2d 304, 307 (Ind. Ct. App. 2008), trans. 

denied.

995 N.E.2d 1051, 1053-54 (Ind. Ct. App. 2013), trans. denied.

[10] Further, this appeal requires us to interpret and apply Indiana’s Drainage Law. 

As our Supreme Court has explained,

[t]he Indiana Drainage Law . . . establishes an extensive and 

detailed regulatory scheme for addressing drainage issues. It 
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creates a drainage board in each county, I.C. § 36-9-27-4, and 

gives the board jurisdiction over all regulated drains[] in the 

respective county, except as otherwise provided by the statute, 

I.C. § 36-9-27-15. The Drainage Law vests these boards with 

comprehensive regulatory authority to construct, reconstruct, and 

maintain public drains to alleviate problems associated with 

flooding, wetlands, and other accumulated surface water. I.C. §§ 

36-9-27-38 to -69. It also empowers the boards to levy special 

assessments on properties benefited by drainage projects, 

provided that the assessments are apportioned to the benefits 

accruing to the particular parcel. I.C. §§ 36-9-27-39, -50, -62, 

-84(a), -112. The county surveyor assists the drainage board in 

the exercise of its statutory authority by providing specialized 

technical expertise. I.C. §§ 36-9-27-29, -34.

Crowel v. Marshall Cty. Drainage Bd., 971 N.E.2d 638, 639-40 (Ind. 2012).

Issue One: Transfer of Funds

[11] Landowners first contend that the trial court erred when it found that nothing in 

the Drainage Law prohibited the Board from intentionally creating a surplus in 

the maintenance fund in order to transfer up to seventy-five percent of that 

surplus to a reconstruction fund. Landowners acknowledge that the Board had 

statutory authority both to “create an excess of maintenance funds up to four 

(4) times the annual assessment and capped at eight (8) times” the assessment 

and to transfer up to seventy-five percent of the excess maintenance funds to the 

reconstruction fund. Appellants’ Br. at 15 (citing I.C. §§ 36-9-27-43 and 36-9-

27-45.5). But Landowners maintain that the Board was not authorized to 

“commit[] future uncertain excess maintenance funds” to repay a loan for the 

anticipated reconstruction project. Id. at 13.
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[12] Indiana Code Section 36-9-27-45.5 (2019) provides as follows:

(a) This section applies when a county surveyor advises the 

drainage board that in the county surveyor’s opinion a 

maintenance fund has a balance in excess of the amount 

reasonably needed in that fund for maintenance work in the 

foreseeable future.

(b) The board may transfer an amount up to a maximum of 

seventy-five percent (75%) of the money in the maintenance fund 

to a reconstruction fund that covers the same watershed as the 

maintenance fund from which the money is transferred.

[13] Landowners assert that the trial court misinterpreted the statute when it found 

that the Board was authorized “to obligate future anticipated excess 

maintenance funds to fund a current reconstruction project.” Appellants’ Br. at 

15. In particular, Landowners contend that

[t]he key word which the Trial Court failed to give meaning to

and which its conclusion of law rendered meaningless is “has.” 

Has is a word of present tense. It means that the maintenance 

fund must currently have the funds in order for the Board to 

transfer them. In this case, the Board’s decision, which was 

upheld by the Court, commits unknown future funds to make 

payments on a $4.6 million-dollar reconstruction project which 

the maintenance fund may or may not have in the future.

Appellants’ Br. at 17.

[14] Landowners’ contentions on this issue miss the mark. It is well settled that, if a 

statute is unambiguous, we may not interpret it but must give the statute its 

clear and plain meaning. Wallen v. Hossler, 130 N.E.3d 138, 146 (Ind. Ct. App. 
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2019). The parties do not dispute that the statute is unambiguous, and we 

agree. The clear and plain meaning of the statute permits a drainage board to 

transfer up to seventy-five percent of the money in a maintenance fund to a 

reconstruction fund. Landowners are correct, of course, that “the maintenance 

fund must currently have the funds in order for the Board to transfer them.” 

Appellants’ Br. at 17. But that is not the issue here—the Board did not transfer 

nonexistent funds.

[15] The crux of Landowners’ contention on appeal is that the statute cannot be read 

to authorize the Board to count on future excess funds in the maintenance fund 

to repay a loan on the reconstruction project. As the trial court noted, 

Landowners assert that a transfer of excess funds is only authorized if excess 

funds are “created by the routine collection of assessments.” Appellants’ App. 

Vol. 2 at 30. But the statute is silent whether a Board, as here, may 

intentionally create a surplus in a maintenance fund for the express purpose of 

paying for a future reconstruction project. It is well settled that we may not add 

new words to a statute which are not the expressed intent of the legislature. 

City of Lawrence Utils. Serv. Bd. v. Curry, 68 N.E.3d 581, 585 (Ind. 2017). 

Accordingly, we cannot read a prohibition into the statute where there is not 

one. Further, we note that, under the Home Rule Act, a governmental unit’s 

authority includes “not only all powers granted to it by statute, but also ‘all 

other powers necessary or desirable in the conduct of its affairs, even though not 

granted by statute.’” City of North Vernon v. Jennings Northwest Reg. Utils., 829 

N.E.2d 1, 4 (Ind. 2005) (quoting I.C. § 36-1-3-4(b)(2); emphasis added). 
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[16] In sum, as the trial court correctly found, nothing in the statute prohibits the 

Board from intentionally creating a surplus in a maintenance fund for the 

express purpose of ultimately transferring up to seventy-five percent of the 

money in the fund to a reconstruction fund. And, because the Board can only 

transfer the funds when the maintenance fund “has” excess funds, the Board’s 

funding plan does not violate Indiana Code Section 36-9-27-45.5. Finally, 

nothing in the Drainage Law prohibits the Board from financing the 

reconstruction project and using excess maintenance funds to repay the loan. 

We hold that the trial court did not err when it found that the Board’s plan to 

pay for the reconstruction project does not violate the Drainage Law.

Issue Two: Bonds

[17] Landowners next contend that the trial court erred when it found that the Board 

was authorized by statute to fund the reconstruction project “through future 

potential maintenance excess funds” instead of through the sale of bonds. 

Appellants’ Br. at 20. In support of their contention, Landowners assert that 

the trial court misinterpreted Indiana Code Section 36-9-27-94(a), which 

provides:

(a) Whenever the board determines by resolution spread upon its 

minutes that the cost of constructing or reconstructing a 

particular drain is in excess of that amount that the owners of 

land to be assessed may conveniently pay in installments over a 

five (5) year period, it shall authorize the sale of bonds to finance 

the construction or reconstruction.
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Landowners maintain that “Section 94(a) is not permissive but is mandatory 

when it states that the Board ‘shall’ authorize the sale of bonds to finance the 

reconstruction. The Trial Court’s affirmation of the Board’s plan to fund the 

reconstruction from the hoped[-]for future excess funds renders Section 94(a) 

meaningless.” Appellants’ Br. at 20.

[18] However, Landowners ignore the clear language of the statute that makes the

mandatory sale of bonds contingent on a determination by the Board that the 

reconstruction cost “is in excess of that amount that the owners of land to be 

assessed may conveniently pay in installments over a five (5) year period.” I.C. 

§ 36-9-27-94(a). Here, there is no dispute that the Board did not make any such 

determination. Rather than pay for the reconstruction project with assessments, 

the Board adopted the Tipton County surveyor’s recommendation to levy “[n]o 

additional assessments” and to fund the project through a loan to be repaid 

using the excess funds in the maintenance fund. Appellants’ App. Vol. 2 at 167. 

Because there was no assessment1 to be paid “in installments” by Landowners, 

the Board was not required to determine what they could “conveniently pay,” 

and it was not required to sell bonds. I.C. § 36-9-27-94(a).

1

 We note that Landowners do not contend that the maintenance fund assessments, which were established 

in 2014, are required by the statute to be considered by the Board in determining what Landowners could

“conveniently pay” towards a reconstruction project. I.C. § 36-9-27-94(a).
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Issue Three: Formation of Board

[19] Finally, Landowners contend that the trial court erred when it rejected their 

claim that the Board was not properly formed and should be disbanded. The 

trial court made two separate findings on this issue. First, the trial court found 

that Landowners’ claim was time-barred because they did not timely file their 

petition for judicial review within twenty days of October 23, 1991, when the 

Board published the order establishing the Board. Second, the trial court found 

that Landowners’ claim, brought twenty-seven years after the Board was 

formed, was also barred by the doctrine of laches.

[20] In their brief on appeal, Landowners’ argument focuses on the alleged 

procedural deficiencies surrounding the Board’s formation. But Landowners

do not make cogent argument on the trial court’s finding that their claim on this 

issue is barred by the doctrine of laches. “‘Independently of any statute of 

limitation, courts of equity uniformly decline to assist a person who has slept 

upon his rights and shows no excuse for his laches in asserting them.’” See 

SMDfund, Inc. v. Fort Wayne-Allen Cty. Airport Auth., 831 N.E.2d 725, 729 (Ind. 

2005) (quoting Penn Mutual Life Ins. Co. v. Austin, 168 U.S. 685, 698, (1898)).

[21] In their brief on appeal, Landowners correctly set out the elements of laches, 

namely: “(1) [an] inexcusable delay in asserting a known right; (2) an implied 

waiver arising from knowing acquiescence in existing conditions; and (3) a 

change in circumstances causing prejudice to the adverse party.” See id. But 

Landowners then assert, without any citation to the record, that “[n]one of the 
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required elements for the imposition of laches exists in this case.” Appellants’ 

Br. at 21.

[22] Landowners have not satisfied their burden on appeal to persuade us that the 

trial court erred when it found that their claim on this issue is barred by laches. 

Landowners baldly assert that “they had no knowledge of the defective Board 

formation until 2017.” Id. However, Landowners do not suggest that they 

could not have discovered the alleged procedural deficiencies prior to 2017. 

Indeed, Landowners acknowledge that the alleged deficiencies were discovered 

once they “scrutin[ized] . . . stored records.” Id. at 20. And Landowners’ sole 

argument to the trial court on the issue of laches was that, prior to 2017, “there 

was no reason for anyone to” suspect a problem with the Board’s formation. 

Tr. at 7. Without any allegation, let alone evidence, that the records relevant to 

the Board’s formation were not available to them until 2017, we cannot say that 

the trial court erred when it found that Landowners’ claim is barred by laches. 

See, e.g., SMDfund, Inc., 831 N.E.2d at 731 (holding plaintiffs’ claim that airport 

authority was improperly constituted brought seventeen years after its 

formation was barred by doctrine of laches).

Conclusion

[23] Landowners apprehend that the Board’s scheme for financing the 

reconstruction project and repaying the loan using up to seventy-five percent of 

the maintenance fund annually risks a future lack of funds for maintenance

projects. But Landowners ignore the legislature’s clear intent to grant the Board 

authority to transfer up to seventy-five percent of the maintenance fund to a 
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reconstruction fund. As the Board points out, such a transfer can only be made 

if a surveyor advises the Board that the maintenance fund “has a balance in 

excess of the amount reasonably needed in that fund for maintenance work in 

the foreseeable future.” I.C. § 36-9-27-45.5(a). Thus, Landowners’ fear of a 

maintenance fund shortfall is unwarranted.

[24] The trial court did not err when it found that nothing in the Drainage Law 

prohibits the Board from funding the reconstruction project through a loan to be 

repaid out of a reconstruction fund made up of excess funds transferred from 

the maintenance fund. The trial court did not err when it found that the Board 

was not required to sell bonds to finance the reconstruction project. Finally, the 

trial court did not err when it found that Landowners’ contention that the

Board should be disbanded is barred by the doctrine of laches.

[25] Affirmed.

Bailey, J., and May, J., concur.