Court of Appeals of Indiana | Opinion 39A05

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- 401 | F e b r u a r y 5 , 2 0 1 6 Page 1 of 28 A TTORNEYS FOR A PPELLANT C. Gregory Fifer Applegate Fifer Pulliam LLC Jeffersonville, Indiana Robert G. Bottorff, II Jeffersonville, Indiana A TTORNEYS FOR A PPELLEES William Edward Jenner David R. Sutter Jenner Pattison Sutter & Wynn LLP Madison, Indiana



### IN THE 

# COURT OF APPEALS OF INDIANA

Liter’s of Indiana, Inc., Appellant

- Plaintiff,

v.


### Earl E. Bennett and Daniel L. Bodine, Appellees

- Defendants. 

### F ebruary 5, 2016 Court of Appeals Cause No. 39A05

- 1408

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- 401 Appeal from the Jefferson Circuit Court The Honorable Alison T. Frazier, Special Judge Cause No. 39C01

- 0702

- PL

- 84

Riley, Judge.Court of Appeals of Indiana | Opinion 39A05

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### STATEMENT OF THE CASE Appellant

- Plaintiff , Liter’s of Indiana, Inc. ( Liter’s) , appeal s the trial court ’ s judgment ent ered pursuant to a jury’s verdict in favor of the Appellee s Defendant s , Earl Bennett (Bennett) and Daniel Bodine ( Bodine ) ( collectively, the Appellee s ).

We affirm , and remand with instructions only as to the issuance of perma nent injunction with regards to the trespass claim.



### ISSUE S
Liter’s raises three issues on appeal which we restate as follows : (1) Whether the common enemy doctrine precludes the Appellees’ negligence claim against Liter’s ; (2) Whether the trial court abused its discretion in admitting certain expert

test imony; and ( 3 ) Whether the jury awarded inadequate damages on Liter’s trespass claim.



### FACTS AND PROCEDURAL HISTORY Around 1982, Bennett and his father purchased 27.25 acres in Hanover, Jefferson County, Indiana (Appellees’ Property)

. The existing home on the property served as Be nnett ’s home. In 1992, Bodine, Bennett’s half

- brother, inherited his father ’s one - half interest in the Appellees’ Property , there by making him a joint owner. The land adjoining to the east was owned by Richard Clem (Clem) . Clem had developed the furthest east side of his property with residential housing and named it Jefferson Manor , Phase I . TheCourt of Appeals of Indiana | Opinion 39A05

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- 401 | F e b r u a r y 5 , 2 0 1 6 Page 3 of 28 w est ern portion , which was approximately 28.072 acres and abutt ed the Appellees’ Property , remained undeveloped , and i n early 2006, Clem accepted Liter’s , a construction service company , o ffer to purchase the se remaining
28.072 acres ( Liter’s Property )

. The Appellees’ and Liter’s P roperties were bordered on the south by Highway 62 , and th e Appellees ’ Property and Liter’s Property now shared a boundary line

. In the middle of the two P roperties, there was a shallo w ditch on the boundary line and a fter a rainfall, water would collect in the ditch and run south from the Liter’s Property to the Appellees’ existing twelve

- inch culvert and flow out through Highway 62.
LQI Development, Inc. (LQI), a company owned by Liter’s , projected to develop the Li ter’s Property into a resident ial subdivision comprising of sixty three lots . The subdivision was to be known as Jefferson Manor , Phase II

. Embarking on its plan , o n March 20, 2006, Liter’s hired Blankenbeker & Son Land Surveyors Inc. (Blankenbeker) to conduct a boundary survey

. Consequently , Liter’s applied for a preliminary plat from the City of Madison Plan Commission (the Commission)

. O n May 1, 2006, an advisory hearing was held to consider Liter’s application

. During the meeting, an issue arose

r egarding drainage on Liter’s Property , and the Commission directed Liter’s , through its engineers , to consider constructing a detention basin so as to relieve “down

- stream neighbors” from flooding. (Transcript p. 884). On a follow

- up meeting held on J uly 6, 2006, Liter’s attorney informed the Commission that Liter’s would procure a drainage easement from its neighbors p rior to theCourt of Appeals of Indiana | Opinion 39A05

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- 401 | F e b r u a r y 5 , 2 0 1 6 Page 4 of 28 Commission’s approval of the final plat. At the close of the meeting , the Commission approved Liter’s preliminary plat. 1

Liter’s believed that the Appellees had encroach ed on its property because : (1)

t he eaves of Bennett’s roof visibly extended “by two feet ” on its property, (2) Bennett’s d riveway trees sat on Liter’s P roperty , (3) and Bennett’s satellite dish

was rooted on Liter’s P roperty

. (Appellant’s App. p. 112). In addition, each time Bennett mow ed the grass bordering the boundary line , he would trespass

on Liter’s Property

. (Appellant’s App. p. 112). O n September 25, 2006 , Blankenbeker completed its initial survey , which d id not confirm the aforementioned alleged encroachments

. On October 26, 2006, Blankenbeker revised the initial survey . A gain , the alleged encroachment s were un detected

. Still, i n t he same month and in an effort to resolve the impending drainage issue raised by the Commission , Liter’s approached the Appellees seeking t o
construct a retention basin 2 on the Appellees’ Property . The Appellees rejected Liter’s proposal

.

1 The record shows that in November 200 7, the Commission approved the final plat

. 2 Section 5 of the Madison County Stormwater Drainage Ordinance defines a retention basin as a storm water storage facility without a defined/constructed discharge point.Court of Appeals of Indiana | Opinion 39A05

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- 401 | F e b r u a r y 5 , 2 0 1 6 Page 5 of 28 On January 16, 2007, through a letter, Liter’s once again approached the Appellees and offered $2,500 in exchange for the grant of an easement to
construct a storm water detention basin 3 on the Appellees’ Property

. In addition , Liter’s proposed to execute an easement in favor of the Appellees , thus providing them with an acce ss strip which would allow Bennett to walk and mow around his house without trespassing on the Liter’s P roperty , and to also keep the unpermitted encroachments

. On the same day, the Appellees , through their lawyer , rejected that offer

. Following that rejection , Liter’s commissioned Blankenbeker to commence plans to build a detention basin on its p roperty.

S ince prior surveys did not reveal the encroachments, Liter’s instructed Blankenbeker to conduct a third survey , which was finalized on F ebruary 5,
2007

. That survey confirmed Liter’s allegations , and c onsistent with those findings , on February 7, 2007, Liter’s filed a C omplaint seeking to enjoin and recover damages for the continuing trespass on its property

. On April 3, 2007, the Appellees counterclaimed , alleging nuisance since L iter’s had erect ed a spite

3 Section 5 of the Madison County Stormwater Drainage Ordinance defines a detention basin as a facility constructed or modified to restrict the runoff of storm water to a prescribed rate, and/or to detain excess waters that accumulate upstream from the outl et

.Court of Appeals of Indiana | Opinion 39A05

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- 401 | F e b r u a r y 5 , 2 0 1 6 Page 6 of 28 fence 4 which deprived them of light and air. On April 23, 2007, Liter’s filed its
response stating that the chain link fence could not reasonably deprive the Appellees of light and air. On January 14 , 2009, following leave of court, the Appellees amended their C ounterclaim to contend that Liter’s had negligently designed it s subdivision and that t he post

- development surface water runoff from the Liter’s Property would flood the Appellees’ Property

. I n the same month, Liter’s filed its response.

A lmost two year s later , on December 6, 2010, Liter’s filed a motion for
summary judgment on the Appe llees’ negligence claim and on Liter’s trespass claim. In support of its motion, Liter’s argu ed that Indiana’s c ommon e nemy d octrine

— which provides that surface water that does not flow in defined channels is a common enemy, and each landowner may deal with it in such a manner as best suits his own convenience

— applied ; therefore , it could not be
l iable for negligence. On its trespass claim, Liter’s argued that the facts were unrebutted

. The Appellees’ sole rebuttal to Liter’s assertion that the common enemy d octrine barred their claim was that the doctrine was abrogated by the adoption of Ind iana Code section 36

- 9

- 27

- 69.5

— which provides in part : (1) that

4 Indiana Code s ection 32

- 26

- 10

- 1, titled “Description of S pite F ence,” defines as a nuisance “a fence unnecessarily exceeding six (6) feet in height, maliciously erected

. . . for the purpose of annoying the owners or occupants of adjoining property. ”Court of Appeals of Indiana | Opinion 39A05

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- 401 | F e b r u a r y 5 , 2 0 1 6 Page 7 of 28 a drainage plan must maintain the amount of drainage through the tract that existed when the tract was created; (2) the plan may not change locations where surface water enters the tract and exit s the tract; and (3) water that sheds off a new structure especially when the new structure is elevated or near a property line or both must exit the tract in the same location where it did when the tract was created. A hearing on the summary judgement mot ion was held on November 21, 2011, and t he trial court took the matter under advisement

. Without issuing specific find ings , o n March 5, 2012, the trial court summarily found there were genuine issues of material fact that precluded a disposition

.
Followin g the denial of Liter’s summary judgment motion, on June 12, 2012, the Appellees filed their S econd A mended C ounterclaim , adding a third claim pursuant to Indiana Code section 36

- 9

- 27

- 6 9.5 which provides requirements for drainage plans when subdividing lot s

. In addition, the Appellees sought a declaratory judgment in the interpretation and application of Indiana Code section 36

- 9

- 27

- 69.5 to the case

. On November 26, 2012 , following a hearing, the trial court determined that I ndiana Code section 36

- 9

- 27

- 69.5 was inapplicable to the case and it dismissed the Appellees ’ third claim.

On March 5, 2014, Liter’s filed a motion seeking to dismiss portions of the Appellees ’ Second Amended C ounterclaim. On June 4, 2014, the trial court entered an order gra nting in part and denying in part Liter’s motion. Specifically, the trial court dismiss ed paragraph 4 (b) of the Appellees’ negligence claim alleging that Liter’s had negligently and carelessly designed its subdivision by using a land surveyor instead of a registered engineer.Court of Appeals of Indiana | Opinion 39A05

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- 401 | F e b r u a r y 5 , 2 0 1 6 Page 8 of 28 Nevertheless , the trial court declined to dismiss paragraph 4(e) where in the Appellees had claimed that Liter ’s had negligently designed its subdivision in a manner that w ould lead to an increase d drainage burden upon the Appellees ’ Property

. The only remaining claims at the time of tr ial were: (1) Liter’s trespass claim regarding the eaves of Bennett’ s roof encroaching its property; (2) the Appellees’ nuisance claim with respect to the spite fence ; and (3) the Appellee s’ negligenc e claim alleging that:

4. [Liter’ s] . . . had negligently and carelessly designed its subdivisi on in the following particulars:

* * * *
c. Designed a subdivision and ponding system where surface water will be collected into a body and discharged into t he [Appellees’ P roperty ]; d. Designed and created a nuisance by creating a private pond or a common private pond; e. Designed and created a subdivision that will increase drainage burden upon lower land owners including the [Appellees]; and f. Failed to use their own property so as not to cause unnecessary injury to [Appellees’ P roperty ]

. 5. As a proximate result of the negligence [] the [Appellees’ P roperty] has been seriously devalued and will be subject to flooding and destruction

. . . . (Appellant’s App. p. 234).

A six

- day ju ry trial was held from July 22

- July 28, 2014. With regards to the trespass claim, at time of trial, the satell ite dish had been removed, but the eaves of Bennett’s roof remained. The Appellees ’ sole defense to t he trespass claimCourt of Appeals of Indiana | Opinion 39A05

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easement. Liter’s offered unrebutted evidence that the value of its property had been reduced , thereby incurring a loss of $18,000. At the close of the evidence, Liter’s moved for a directed verdict on its claim but was denied.
On the nuisance issue, Bennett stated that he came home sometime in February 2007 to find a chain link fence erected on the boundary line between the two properties. Bennett indicated that it made him feel like he was being punished for rejecting Liter’s propositions. Bennett’s wife testified that looking through their window felt like they were in prison. Bennett acknowledged that Liter’s took down the fence somet ime in August of 2007. Liter’s defense was that it put up the fence to establish the property line between the two properties.
With regards to the Appellees’ negligence claim, much of the arguments were centered on t he design scale that Blankenbeker had employed in construct ing the basin

. The Appellees presented evidence of Robert Isgrigg (Isgrigg), an engineer who evaluated Blankenbeker ’s design. Isgrigg stated that a rational method is employed to calculat e the dimension of the basin. 5 Isgrigg point e d

5 According to the HERPICC Stormwater Drainage Manual (the Manual), the formula for the rational method is stated as Q=CIA

— where Q is the peak discharge of the storm water in cubic feet per second; C is the ratio of peak runoff rate (runoff coefficient); I is the rainfall intensity; and A is the contributing area in
acres.Court of Appeals of Indiana | Opinion 39A05

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- 401 | F e b r u a r y 5 , 2 0 1 6 Page 10 of 28 out that the runoff coefficient factor utilized by Liter’s surveyor, Blankenbeker, was too high and due to that, i t led to the construction of a small de tention basin. Isgrigg argued that the use of a lower coefficient would have re sulted in the constru ction of an adequate detention basin

. According to the final plat submitted to the Commission in 2007 , Blankenbeker indicated that the size of the detention basin to be constructed would be 34,500 cubic feet. Isgrigg stated that during his site visit on September 19, 2008, he measured the detention basin and found that it to be 20,000 cubic feet. According to Isgrigg, an adequate detention b asin should have been around 50,000 cubic feet.
In addition, Isgrigg stated that the final plat showed “a 24

- inch diameter culvert I believe [] under the entrance driveway on Highway 62. There is no culvert. They didn’t put it in. So what happens if they’ve got uh .

. . 300 feet of curve,
streets, cu rved gutters, rain gutters flowing down to [the Appellees’] driveway entrance on Highway 62

. . . . The water dumps into that intersection. ” (Tr. p. 666). During wet months, Isgrigg stated that the area would receive about “half an inch to an inch rainfal l [], three or four times a month.” (Tr. p. 663). Because the detention basin was too small, Isgrigg believed that the basin would fill up faster and that there would be an accelerated discharge of surface water from the Liter’s Property which would , in turn , cause erosion and flooding on the Appellees’ Property.
The Appellees also retained a contractor , Scott Best (Best) , who testified over Liter’s objection that based on his experience, the detention basin seemed to be

“ small for the amount of propert y that we are dealing with” but admitted thatCourt of Appeals of Indiana | Opinion 39A05

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- 401 | F e b r u a r y 5 , 2 0 1 6 Page 11 of 28 he was not a hydrologist or surveyor, and had not performed any calculations on which to base his opinion

. (Tr. p. 781). The record shows that part of Liter’s drainage system consisted of twenty

- five drain pipes. Out of the twenty

f ive, nineteen drained into the detention basin and the remaining six drained away from the basin

. Best stated that he observed several curb drains which he described as “an inlet box that is on or in a roadway that catches all t he water that comes down the road.” (Tr. p. 773). According to Best, there was “a pipe [] taking water from the curb drains ” and directly empt y ing out on the Appellees’ Property. (Tr. p. 775). Best indicated that said pipe was located about ten to fift een feet from Bennett’s house.
During cross - examination , Best clarified that the drain pipes did not end and empty out on Appellees’ Property as earlier stated on direct, but they sat , ended and drained on the Liter’s Property. Best also admitted that he did not conduct
any topography review to see which path the water travels after leaving the drain pipe s. Additionally , Best stated that on the day he visited the Liter’s Property sometime in June 2013, the detention basin was empty and there was

no water fe eding through the pipes

. Also , Best stated there was no standing water in the Appellees’ driveway culvert, Bennett’s house was still standing, and there was no visible damage to Bennett’s residence

.
Blankenbeker testified that t he purpose of a detention basin was to “hold back the water and let it out slowly,” with the goal being “to let it out at the same rate that it occurred before the development occurred.” (Tr. p. 868). Blankenbeker explained that th e detention basin was d esigned to collect theCourt of Appeals of Indiana | Opinion 39A05

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- 401 | F e b r u a r y 5 , 2 0 1 6 Page 12 of 28 storm water accumulations from the Liter’s Property and the water was to be channeled through a weir structure, and then into a concrete swale running parallel to the boundary line between the two properties. From the swale, the

water was intended to diffuse into the Appellees’ existing twelve

- inch culvert and flow out through Highway 62.

Blankenbeker contended that in his twenty

- four years of designing residential subdivisions, he had never utilized a low coefficient as that suggested by Isgrigg. In support of Blankenbeker’s design, Liter’s presented the testimony of a civil engineer , Bernard Hauersperger (Hauersperger) , who found the runoff coefficient factor appl ied by Blankenbeker to be sensible

. Hauersperger further testified that during his site visit, he inspected the detention basin and he determined it adequate for the sixty

- three lots in Jefferson Manor, Phase II

. During cross

- examination, Hauersperger ac knowledged that there was “ponding of water at the outlet end” of the Appellees’ driveway culvert. (Tr. p. 927). He also acknowledged that “if this subdivision is fully built out [] more water will be draining onto the [Appellees’ Property] than it did prior to the development.” (Tr. p. 927). Despite Isgrigg ’s assertion that one of the pipes directly drained in to the culvert, o n redire ct, Hauersperger explained the pipe that drained close to the Appellees’ driveway culvert first drained into a swale.
He further stated that the swale “ wo uld hold quite a bit of water . . . you could call it a detention facility given that the driveway pi pe . . . has a restriction on the end of it. I believe it has an eight

- inch [] pipe on the end of the culvert. ” (Tr. p. 930). Because there was a restriction on the tail end of the culvert , itCourt of Appeals of Indiana | Opinion 39A05

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62.

Bodine testified that the construction at the Liter’s Property began sometime in
200 8

. At the time of the current trial, o ut of the sixty

- three lots , only six lots had been developed. Bodine stated that “we’ve got erosion . . . underneath the driveway where one of the [] storm drains comes across our property [].” (Tr. pp. 798

- 99). Bennett testified that before Liter’s broke ground in 2008, they had never experienced water backing up “ right on the brick ” of his house. (Tr . p. 806). Bennett indicated that the flooding occurred at least “two or three times a year.” (Tr. p. 806). Bennett stated that he would use a bush hog to mow the grass in the depression amid the two P roperties , but a ditch had formed due to erosion. In addition, Bennett claimed that during a three

- inch rainstorm , water would canal into one of the drain pipes that was situated ab out sixty feet behind his house

. 6 He indicated that the water would then channel through the swale ,

6 C onflicting evidence was presented as to how close that pipe was situated to Bennett’s house . At trial, Best testified that the said pipe was approximately ten to fifteen feet from Be nnett’s home. Isgrigg testified that the pipe was “roughly about [seventy

- five feet ] ,” whereas Bennett state d that the pipe was about sixty feet from his home. (Tr. p. 665).Court of Appeals of Indiana | Opinion 39A05

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- 401 | F e b r u a r y 5 , 2 0 1 6 Page 14 of 28 but because the water wa s substantial , it would rise , ov erflow to his property , and back up behind his house.
Additionally, t he Appellees presented testimony of a licensed appraiser , Katherine Love (Love), who stated that she visited the Appellees’ Property on January 3, 2011. Love stated that while conducting her survey, she explored the P roperty and looked exhaustively at the surrounding s . Love admitted that there were no drainage issues nor did she observe erosion on the Appellees’ Property. Love stated as of Jan uary 2011 , the value of the Appellees’ Property was $217,000

. Over Liter’s objection, Love was permitted to testify that the value of Appellees’ Property would diminish in light of Liter’s inadequate detention basin and also on the backdrop of some specul ative flooding that would occur at least three times a year . Specifically, Love stated that the Appellees ’ Property would be devalued if it flooded three times a year, and that the Appellees would suffer damages of $134,500 ; there fore the new value of their Property would be $82,500. During cross

- examination, Love acknowledged that she h ad not observed any destruction, and that her opinion on the Appellees’ Property lessening in value was based on mere speculation.

After six days of jury trial an d close to n ine hours of deliberations, the jury found for Liter’s on its trespass claim but awarded no damages. On the nuisance claim, t he jury found for the Appellees’ but also awarded no damages. As for the A ppellees’ negligence claim, the jury found for the Appellees , awarding court costs and attorney’s fees and direct ing Liter’s to “ makeCourt of Appeals of Indiana | Opinion 39A05

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- 401 | F e b r u a r y 5 , 2 0 1 6 Page 15 of 28 necessary repairs to [the] drainage [] . This will prevent any and all future flooding to [the Appellees ’ Property]. ” (Appellant’s App. p. 26).

T he trial court accepted the verdict s for t h e trespass and nuisance claims , but declined to accept the verdict on negligence, stating that it was inconsistent. Specifically, the trial stated that the Appellees had not sought court costs and attorney ’s fees ; as such, the award was inconsistent pursuant to Indiana Code section 34

- 51

- 2

- 13

— providing , in part , that whenever a jury returns verdicts in which the ultimate amount awarded is inconsistent with its determinations of total damages and percentages of fault, the trial c ourt shall inform the jury of such inconsistencies , and order it to resume deliberations to correct its verdict. Accordingly , t he trial court directed the jury to reconsider it negligence verdict , and it provided the jurors with new verdict form s to guide its determination. Following the conclusion of those deliberations, the jury returned a verdict in favor of the Appellees , awarding damages of $51,150 each to Bennett and Bodine. On August 25, 2014, the trial court entered an order consistent w ith the jury verdict s

.
Liter’s now appeals. Additional information will be provided as necessary.

DISCUSSION AND DECISION


### I . Common Enemy Doctrine The Appellees advanced a negligence claim against Liter’s on the grounds that Liter’s negligently desig ned the subdivision “in such a manner that runoff water” from the Liter’s Property will discharge and flood the Appellees’Court of Appeals of Indiana | Opinion 39A05

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- 401 | F e b r u a r y 5 , 2 0 1 6 Page 16 of 28 Property. (Appellant’s App. p. 233). In arguing that it had no duty to the Appellees, Liter’s claim s that the construction of a dra inage system on its property was an effort to protect its own property from the accumulation of surface waters and that the common enemy doctrine protects it from incurring any liability.
We note this is an appeal from a jury trial, and “when reviewing t he sufficiency of evidence in a civil case, we determine whether there is substantial evidence of probative value supporting the judgment. Jamrosz v. Resource Benefits, Inc. , 839 N.E.2d 746, 758 (Ind. Ct. App. 2005), trans. denied . We do not weigh the

ev idence or judge the credibility of witnesses but consider only the evidence most favorable to the judgment along with all reasonable inferences to be drawn therefrom. Davidson v. Bailey , 826 N.E.2d 80, 87 (Ind. Ct. App. 2005). We affirm unless the judgme nt “is against the great weight of the evidence.” Id

.
In Argyelan v. Haviland , 435 N.E.2d 973, 975 (Ind. 1982), our supreme court stated:
In its most simplistic and pure form the rule known as the “common enemy doctrine,” declares that surface water whi ch does not flow in defined channels is a common enemy and that each landowner may deal with it in such manner as best suits his own convenience. Such sanctioned dealings include walling it out, walling it in and diverting or accelerating its flow by any means whatever.

In Bulldog Battery Corp. v. Pica Investments, Inc ., 736 N.E.2d 333, 339 (Ind. Ct. App. 2000), we clarified that under the common enemy doctrine of water diversion, it is not unlawful for a landowner to improve his land in such a wayCourt of Appeals of Indiana | Opinion 39A05

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- 401 | F e b r u a r y 5 , 2 0 1 6 Page 17 of 28 as to accelerate or increase the flow of surface water by limiting or eliminating ground absorption or changing the grade of the land even where his land is so situated to the land of an adjoining landowner that the improvement will cause water either to stand i n unusual quantities on the adjacent land or to pass into or over the adjacent land in greater quantities or in other directions than the waters were accustomed to flow. An owner of land has the right to occupy and improve it in such manner and for such p urposes as he may see fit including changing the surface or by erecting buildings thereon. Argyelan , 435 N.E.2d at
976.
An exception to the common enemy doctrine exists where an owner of land , by artificial means, throws or cast s water onto his neighbor in unusual quantities so as to amplify the force at a given point or points. Id. Furthermore, we note that the common enemy doctrine applies only to surface water, and not to a natural watercourse. Long v. IVC Indus. Coatings, I nc. , 908 N.E.2d 697, 702 (Ind. Ct. App. 2009). “Surface water” has been defined as “[w]ater from falling rains or melting snows which is diffused over the surface of the ground or which temporarily flows upon or over the surface as the natural elevations and depressions of the land may guide it but which has no definite banks or channel
. . .” Kramer v. Rager , 441 N.E.2d 700, 705 (Ind. Ct. App. 1982). Finally, we note that the common enemy doctrine may apply regardless of the form of action brought by th e plaintiff, that is, regardless of whether the plaintiff asserts his claims as an action for negligence, trespass, or nuisance. Bulldog BatteryCourt of Appeals of Indiana | Opinion 39A05

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- 401 | F e b r u a r y 5 , 2 0 1 6 Page 18 of 28 Corp. , 736 N.E.2d at 339; Luhnow v. Horn , 760 N.E.2d 621, 632 (Ind. Ct. App. 2001).

In Argyelan , the defendan ts erected a commercial building upon their lot, which was adjacent to the plaintiff's residential lot. Argyelan , 435 N.E.2d at 974. As part of the improvement to the lot, the defendants also erected downspouts directed toward the property line and paved a substantial portion of the lot. Id. at 975. Following completion of these improvements, the plaintiffs complained that surface water was draining from the defendants’ property and pooling on their property, causing damage. Id . The defendants then er ected a six

- inch curb or retaining wall along the property line. Id . In a sustained rain, water would accumulate behind the curb and eventually flow over it onto the plaintiffs’ property. Id . The supreme court held that the defendants were not
liable t o the plaintiffs for damage caused by the overflowing surface water pursuant to the common enemy doctrine because there was no showing that the defendants had, by artificial means, conducted the water in unusual quantities by new channels onto particular p arts of the plaintiffs’ land. Id . at 976. In so holding, the court stated that the fact that “water was once impounded or channeled [via downspouts] can be of no moment if it is diffused to a general flow at the point of entering the adjoining land.” Id

. The Appellees now argue that the combination of having a drainage pipe that drained closely behind Bennett’s house and another that drained into their driveway culvert, coupled with the construction of an undersized detention basin, caused surface water from the Liter’s Property to diffuse at a greaterCourt of Appeals of Indiana | Opinion 39A05

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- 401 | F e b r u a r y 5 , 2 0 1 6 Page 19 of 28 speed, intensity, and volume than before. In this regard, the Appellees argue that the facts place this case squarely within the exception to the common enemy doctrine

— providing that the rule does not appl y where an owner of land has, by artificial means, thrown or cast water onto his neighbor in unusual quantities so as to amplify the force at a given point or points. See Argyelan , 435 N.E.2d at 976. 7
With regards to the size of the detention basin, Lit er’s stated that according to the final plat submitted to the Commission in 2007, the detention basin was 3 4,500 cubic feet. Liter’s constructed a detention basin measuring 20,000 cubic feet. The Appellees a rgued that an adequate detention basin should h ave been 50,000 cubic feet. In addition , the Appellees ’ retained contractor testified over Liter’s objection that based on his experience, the detention basin seemed to be “small for the amount of property that we are dealing with” but admitted that

7 The Appellees acknowledge the rule espoused in Argyelan ; however, they point out in a footn ote that they agree with the dissent in Argyelan and further state that “Indiana should adopt the rule of reasonable use or a modified version of the common enemy doctrine.” (Appellees’ Br. p. 9). We initially note that we abandoned the co mmon enemy doctrine in favor of a different rule called the “rule of reasonable use” in Rounds v. Hoelscher , 428 N.E.2d 1308 (Ind. Ct. App . 1981). However, “ our supreme court promptly pinned our ears back and reasserted the common enemy doctrine as the la w in Indiana in Argyelan

. ” Pickett v. Brown , 569 N.E.2d 706, 708 (Ind. Ct. App. 1991), trans. denied

. Therefore, we respectfully decline the Appellees ’ invitation to reverse supreme court precedent.Court of Appeals of Indiana | Opinion 39A05

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- 401 | F e b r u a r y 5 , 2 0 1 6 Page 20 of 28 he wa s not a hydrologist or surveyor, and had not performed any calculations on which to base his opinion. (Tr. p. 781).
As for drainage pipes, Liter’s drainage system comprised twenty

- five drain pipes. Out of the twenty

- five, nineteen drained into the dete ntion basin and the remaining six drained away from the basin. The Appellees averred that one of those the pipes was located about ten to fifteen feet from Bennett’s house , and that surface water would feed through that pipe and empt y on their property. Refuting the Appellees’ claim, Liter’s argued that despite the existence of that pipe, surface water would first drain into a swale , the swale would then hold the

water momentarily before draining in to the Appellees ’ driveway culvert

.
As noted previously , under the common enemy doctrine, it is not unlawful for a landowner to accelerate or increase the flow of surface water by limiting or eliminating ground absorption or changing the grade of the land, even if it causes water to stand in unusual quantities on the adjacent land or to pass into or over the adjacent land in greater quantities or in other directions than the water did before. Long, 908 N.E.2d at 702 (quoting Argyelan, 435 N.E.2d at 976). In order to impose liability for surface water discharg e, it must be collected on the Liter’s Property and cast off in concentrated volumes onto the Appellees’ Property. See Argyelan , 435 N.E.2d at 975. More importantly, the distinction lies in the character of the flow as it enter s the adjoining property.
“Whether surface water is collected and cast upon neighboring land as a body or collected but diffused before entering neighboring property will be largely aCourt of Appeals of Indiana | Opinion 39A05

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- 401 | F e b r u a r y 5 , 2 0 1 6 Page 21 of 28 question of fact.” Bulldog Battery Corp. , 736 N.E.2d at 340. In the present case, it was the ju ry’s role to determine whether, in light of the evidence before it, Liter’s detention basin and drainage system collected water and cast it upon the Appellees’ Property in unusual quantities so as to increase the force with which it entered onto the proper ty at specific points. Considering the evidence most favorable to the verdict , as we are required to do, the evidence presented showed that the Liter’s Property had a gradual fall of about 1

- 2%. Originally, surface water from the Liter’s Property would t raverse through a depression amidst the two properties and flow into the Appellees’ existing driveway culvert and flow out under Highway 62. The Appellees argued that before Liter’s improved its Property, they had never experienced flooding. Specifically , Bennett testified that before Liter’s broke ground in 2008, he had never experienced water backing up “right on the brick” of his house. (Tr. p. 806). Also, Bodine stated that “we’ve got erosion . . . underneath the driveway where

one of the [] storm d rains comes across our property [].” (Tr. pp. 798

- 99). Furthermore, Bennett stated that during a three

- inch rainstorm, water would canal into one of the drain pipes that was situated closely behind his house and into the swa le ; however, since the amount of water was substantial, it would rise, overflow to its property and, backup behind his house. In addition, the jury was also presented with photographs and diagrams illustrating Liter’s detention basin and drainage system; some of the photographs showed standing water, some did not.Court of Appeals of Indiana | Opinion 39A05

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- 401 | F e b r u a r y 5 , 2 0 1 6 Page 22 of 28 A dmittedly, there was a lot of conflicting evidence offered by both parties. Some witnesses testified in a manner favorable to Liter’s and others favorable to the Appellees. However, as the reviewing court, we respect the j ury’s exclusive province to weigh conflicting evidence. See Davidson, 826 N.E.2d at 87. From
the evidence of the case

— though not free from conflict

— the jury reasonably determined that the construction of Liter’s undersized basin l ed to the casting off of surface water in concentrated volumes onto the Appellees’ Property. In this regard, we find that the common enemy doctrine does not preclude the Appell ees’ claim of negligence against Liter’s, and we affirm the trial court.

II. Admission of Expert Test imony

Liter’s next argues that the trial court abused its discretion in allowing the Appellees’ expert witness , Love, a licensed appraiser, to render opinion testimony regarding the diminution of the Appellee’s Property upon a speculative flooding event. Specifically, Liter’s argues that Love’s testimony regarding the Appellees ’ Property reducing in value was based on “pure guesswork and speculation.” (Appellant’s Br. p. 26).
The admissibility of expert testimony is guided by Indiana Evidence Rule 702 , which provides:
(a) If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.Court of Appeals of Indiana | Opinion 39A05

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- 401 | F e b r u a r y 5 , 2 0 1 6 Page 23 of 28 (b) Expert scientific testimony is admissible only if the court is satisfied that the scientific principles upon which the expert testimony rests are reliable.

A witness must be qualified as an e xpert by his knowledge, skill, experience, training, or education and must have sufficient skill in a particular area before he may offer opinions in that are a. Armstrong v. Cerestar USA, Inc ., 775 N.E.2d 360, 366 (Ind. Ct. App. 2002), trans. denied

. The proponent of the expert testimony has the burden of establishing the foundation and reliability of the scientific principles on which the testimony is based. Hannan v. Pest Control Servs., Inc. , 734 N.E.2d 674, 679 (Ind. Ct. App. 2000), trans. denied

. T he trial court acts as a gatekeeper by preliminarily assessing whether the reasoning or methodology underlying the testimony is scientifically valid and can properly be applied to the facts in issue and by ensuring the testimony both rests on a reliable fo undation and is relevant. Armstrong , 775 N.E.2d at 366. In other words, the trial court is to control the admission of proffered expert testimony rather than admitting what is offered and leaving it to the jury to determine the weight of the testimony. Norfolk S. Ry. Co. v. Estate of Wagers , 833 N.E.2d 93, 101 (Ind. Ct. App. 2005), trans. denied

. Expert testimony admitted under Rule 702 requires more than a subjective belief or unsupported speculation. Armstrong , 775 N.E.2d at 366. It “must be support ed by appropriate validation or good grounds based on what is known . . . .” Lytle v. Ford Motor Co. , 814 N.E.2d 301, 309 (Ind. Ct. App. 2004), trans. denied

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- 401 | F e b r u a r y 5 , 2 0 1 6 Page 24 of 28 The record shows that , in January 2011, at the request of the Appellees, Love, a certified appr aiser, performed a survey of the Appellees’ Property. Love indicated that her survey involved an exhaustive exploration of the Property and its surroundings. Love admitted that there were no drainage issues at the time nor did she observe erosion. Love indicated that as of January 2011, the fair market value of the Appellees’ Property was $217,000 . Love then responded to a hypothetical question where she stated that based on her years of experience as an appraiser , and in light of Liter’s undersized bas in, and upon the happening of a flooding event occurring at least three times a year, the Appellees ’ P roperty would diminish in value. Specifically, Love stated that the Appellees’ Property would suffer estimated damages of $134,500

. During

cross - examination, Love acknowledged that she had not observed any destruction in 2011 , and that her opinion was based on speculation.

“ Although it has been said that an expert witness must have observed facts sufficient to enable him to form a valid opinion, those facts may be supplied in the form of a hypothetical question which incorporates facts previously adduced at the trial.” Fulton C nty

. Comm’rs v. Miller , 788 N.E.2d 1284, 1286 (Ind. Ct. App. 2003)

. Here , we find ample evidence in the record to provid e a factual basis for the hypothetical situation on which Love’s opinion was based

. Bennett testified that following the development of the subdivision, water would lap up against his house approximately two to three times a year. He also indicated that the Property has experienced erosion at specific points. In addition, the Appellees presented evidence through its engineer, Isgrigg, that anCourt of Appeals of Indiana | Opinion 39A05

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- 401 | F e b r u a r y 5 , 2 0 1 6 Page 25 of 28 adequate detention basin should have been around 50,000 cubic feet, but Liter’s had constructed a 20,000 cubic fe et detention basin. Also , Isgrigg stated that the result of the undersized basin led to an accelerated discharge of surface water from the Liter’s Property. Furthermore , Isgrigg pointed out that the accelerated discharge of surface water would cause eros ion.

While Love did not observe any flooding or damage on the Liter’s Property during her visit in 2011, her e xpert testimony was sufficiently tied to the facts of the case and was not unreasonable or outside the scope of the evidence

. See Armstrong , 77 5 N.E.2d at 366. Accordingly, we find that based upon the facts and circumstances herein, the trial court did not abuse its discretion in admitting Love’s testimony.



### II . Damages Liter’s also argues that the jury ’ s award of zero dollars to its trespass claim was inadequate in light of the evidence . Liter’s argues that this cause should be remanded to the trial court for the award of damages or, in the alternative, remanded with instructions for the trial court to grant permanent injunct ive relief requiring the Appellees to remove the unpermitted portion of Bennett’s roof that extends over its property.
When we review a jury ’ s damage award that the appellant claims is inadequate, we apply a strict standard. Ritter v. Stanton , 745 N.E.2 d 828, 843 (Ind. Ct. App. 2001), trans. denied

. Specifically, we “consider only the evidence that supports the award together with the reasonable inferences therefrom.” Id

. “If there isCourt of Appeals of Indiana | Opinion 39A05

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- 401 | F e b r u a r y 5 , 2 0 1 6 Page 26 of 28 any evidence to support the amount of the award, even if it is conf licting, this court will not reverse.” Id

. This standard reflects the premise that damages “are particularly a jury determination.” Sears Roebuck and Co. v. Manuilov , 742 N.E.2d 453, 462 (Ind. 2001). Therefore, we do not substitute our “idea of a
prope r damage award for that of the jury.” Id

. (quoting Prange v. Martin , 629 N.E.2d 915, 922 (Ind. Ct. App. 1994), trans. denied ). Because appellate courts are unable “to actually look into the minds of the jurors,

. . . . we will not reverse if the award fa lls within the bounds of the evidence.” Sears Roebuck , 742 N.E.2d at 462 (citation omitted); see also Russell v. Nuemann

– Steadman , 759 N.E.2d 234, 237 (Ind. Ct. App. 2001) (stating, “[t]he trial court may only reverse a jury verdict ‘when it is apparent f rom a review of the evidence that the amount of damages awarded by the jury is so small or so great as to clearly indicate that the jury was motivated by prejudice, passion, partiality, corruption or that it

c onsidered an improper element.’ ”) (citation omi tted).

The record demonstrates that after Liter’s conducted a boundary survey of its Property, it became apparent that the eaves of Bennett’s roof extended over its Property by two feet. Liter’s also claimed that Bennett’s satellite dish was rooted on its property. In the Compliant, Liter’s sought permanent injunctive relief requiring the Appellees to remove the unpermitted encroachments, and the award of treble damages due to the continuing trespass. At trial, Liter’s presented unrebutted evidence that its property had been devalued by $18,000 as result of Bennett’s roof extending to it property. We note that a jury is presumed to have followed the court’s instructions. Prange , 629 N.E.2d at 922.Court of Appeals of Indiana | Opinion 39A05

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- 401 | F e b r u a r y 5 , 2 0 1 6 Page 27 of 28 The jury was instructed that it could award Liter’s damages that resulted from the trespass. After deliberations, the jury found that Liter’s had substantiated its trespass claim, but was not entitled to damages of any kind. Also, the jury found for the Appellees on its nuisance claim but all the same denied it damages.
The Appellees briefly argue that “[n]owhere did Liter’s offer an objection to the jury verdict of no damages on the trespass count, and thereby waived the error, if any.” (Appellees’ Br . p. 17). Although not specifically mentioned by the Appellees, we note that Liter’s did not file a motion to correct error after the jury verdict. Under the Indiana Rule 59(A)(2) , a motion to correct error is prerequisite to appeal when a party seeks to address a claim that a jury’ s ver dict is excessive or inadequate. Here, Liter’s did not file a motion to correct error, and its argument that we should review the award of zero dollar damages as being inadequate , is waived on appeal.
At the very least, L iter’s seeks that we remand this cause for the issuance of a permanent injunction. We note that p ermanent injunctions are limited to prohibiting injurious interference with rights and must be narrowly tailored so that its scope is not more extensive than is reasonably necessary to protect the interests of the party in whose favor it is granted. Plaza Grp. Props., LLC v. Spencer Cnty. Plan Comm’n , 877 N.E.2d 877, 881 (Ind. Ct. App. 2007) , See also Soc. Serv. v. Hospitality House , 704 N.E.2d 1050, 1061 (Ind

. Ct. App. 1998). “A trial court may issue an injunction in order to prevent a continued trespass.” Ballard v. Harman , 737 N.E.2d 411, 417 (Ind. Ct. App. 2000)

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- 401 | F e b r u a r y 5 , 2 0 1 6 Page 28 of 28 At the time of the current trial, Liter’s had removed the spite fence; however, the Appelle es had not removed the eaves of the roof that extended to Liter’s Property. Here, we find that the continued existence of the Appellee’s roof extending to Liter’s property would involve a continuing trespass. According,
i njunctive relief is the appropria te remedy on remand

. Therefore, we remand to the trial court with instructions for the issuance of a permanent injunction requiring the Appellees to remove the unpermitted portion of Bennett’s roof that extends over Liter’s P roperty

.


### CONCLUSION
In light of the foregoing , we conclude that : (1) the common enemy doctrine does not preclude the Appellees ’ negligence claim ; (2) there was no abuse of discretion in admitting Love’s testimony; and ( 3 ) Liter’s argument that the jury’s award of zero damages is inad equate is waived on appeal; however, because there is continuing trespass, we remand to the trial court with instructions for the issuance of a permanent injunction.

Affirmed , but remand ed with instructions for the issuance of a permanent injunction with respect to the continuing trespass

. Bailey, J. and Barnes, J. concur