Court of Appeals of Indiana | Opinion 92A03-1708-PL-1818| March 22, 2018 Page 1 of 10

ATTORNEYS FOR APPELLANT

Stephen R. Snyder

Randall L. Morgan

Snyder Morgan Federoff & Kuchmay LLP

Syracuse, Indiana 

ATTORNEY FOR APPELLEES

Zachary J. Stock

Zachary J. Stock, 

Attorney at Law, P.C.

Indianapolis, Indiana 

I N T H E

COURT OF APPEALS OF INDIANA

N.G. Hatton Trust,

Appellant-Plaintiff,

v.

Robert D. Young and Ellen M. 

Young,

Appellees-Defendants. 

March 22, 2018

Court of Appeals Case No. 92A03-

1708-PL-1818

Appeal from the Whitley Superior 

Court

The Honorable J. Brad Voelz, 

Judge Pro Tempore

Trial Court Cause No. 92D01-

1110-PL-262

Bradford, Judge.
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Case Summary 

[1] This case involves a dispute between owners of adjoining lakefront lots on 

Shriner Lake in Whitley County, Indiana. Appellant-Plaintiff the N.G. Hatton 

Trust (“the Trust”)1 appeals from the trial court’s order concluding that 

Appellees-Defendants Robert D. Young and Ellen M. Young (“the Youngs”) 

owed no duty to the Trust pursuant to the common enemy doctrine and the 

county’s zoning ordinance. Specifically, the Trust claims that the trial court 

improperly found that the water diverted from the Youngs’ property was 

surface water for purposes of the common enemy doctrine, and that the 

county’s zoning ordinance did not create a private right of action based on the 

Youngs alleged violations and resulting harm to the Trust’s property. Because 

we disagree, we affirm. 

Facts and Procedural History 

[2] The Trust has owned property next-door to the Youngs’ property since 1999. 

The Youngs applied for and received a permit to build a new home on their lot 

in late 2006. (Tr. Vol. I pp. 46, 165). The new home is further up the hill from 

the old Young residence and adjacent to the Hatton home. (App. p. 10). 

During the course of the construction, the Youngs also raised their ground with 

 

1 The property at issue is held in trust for the benefit of the Hatton family. 
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fill between four and six feet. (App. p. 10). Construction was completed in 

July of 2007. (Tr. Vol. I p. 47) 

[3] During and after heavy rains, since the construction of the Youngs’ new home, 

water flows across their driveway before accumulating in a rock bed. The water 

then crosses the property line, causing damage to the Trust’s concrete sidewalk 

and stairs as it travels downhill to the lake. (App. p. 11). In addition, fill, 

including rocks, mud, and sediment, from the Young’s construction washed 

onto the Trust’s property. (Tr. pp. 29-30, 36, 109, 182) 

[4] The Trust filed a negligence complaint against the Youngs on October 24, 2011. 

(App. Vol. II p. 2, 19–21). According to the Trust, the Youngs breached a duty 

to “not divert surface water in a narrow channel onto [the Trust]’s property” 

when they constructed the new home farther up the hill. (App. Vol. II pp. 19–

20). In the alternative, the Trust claimed that the Youngs were negligent per se

for their alleged failure to abide by certain sections of the Whitley County 

Zoning Ordinance (“the Ordinance”) in the construction of their new home. 

(App. Vol. II p. 20). The Youngs answered the complaint and denied that they 

negligently caused any damage to the home on the Trust property. (App. Vol. 

II pp. 3, 30–47). In a second amended answer, the Youngs raised the common 

enemy doctrine as an affirmative defense.

[5] A bench trial was held on April 28, 2017, and the parties subsequently 

submitted proposed findings. On July 14, 2017, the trial court entered findings 

of fact and conclusions of law. The trial court found that the water flowing 
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from the Youngs’ property “wreaks havoc” on the Trust’s property. App. Vol. 

II, pp. 10–11. However, the trial court also found that the water only occurs 

after heavy rains, the Youngs were not “collecting, concentrating, and casting it 

in a body upon” the Trust’s property, and it was not “outside the definition of 

surface water.” App. Vol. II, p. 15. Thus, the trial concluded that “pursuant to 

the common enemy doctrine, [the Youngs] ha[d] no duty to have constructed 

their home in any manner different from what they have done.” App. Vol. II, 

p. 15. Having found no duty, the trial court rejected the Trust’s negligence

claim. The trial court also rejected the argument that a violation of the 

Ordinance created a private right of action for negligence per se. 

Discussion and Decision

[6] The trial court entered findings of fact and conclusions thereon sua sponte. Sua 

sponte findings only control issues that they cover, while a general standard 

applies to issues upon which there are no findings. Eisenhut v. Eisenhut, 994 

N.E.2d 274, 276 (Ind. Ct. App. 2013). 

We may affirm a general judgment with findings on any legal 

theory supported by the evidence. As for any findings that have 

been made, they will be set aside only if they are clearly 

erroneous. A finding is clearly erroneous if there are no facts in 

the record to support it, either directly or by inference.

Id. 
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[7] The Trust contends that the trial court erred in concluding that the water 

running onto the Trust’s property was surface water pursuant to the common 

enemy doctrine, and that the Ordinance, standing alone, did not impose a duty 

on the Youngs as it relates to the Trust. 

I. Negligence 

A. Surface Water

[8] In addressing the Trust’s claim that the trial court misapplied the provisions of 

the common enemy doctrine, “we initially observe that this doctrine declares 

that surface water which does not flow in defined channels is a common enemy 

and that each landowner may deal with it in such a manner as best suits his 

own convenience.” Pflum v. Wayne Cnty. Bd. Of Comm’rs, 892 N.E.2d 233, 237 

(Ind. Ct. App. 2008). 

These sanctioned dealings include walling the water in or out, 

diverting it, or accelerating its flow by any means. However, a 

landowner may not collect or concentrate surface water and cast 

it, in a body, upon his neighbor. This point is further clarified as 

throwing or casting surface water on one’s neighbor in unusual 

quantities so as to amplify the force at a given point or points.

However, it is not unlawful to accelerate or increase the flow of 

surface water by limiting or eliminating ground absorption or

changing the grade of the land.

Id. (Internal cites and quotations omitted). 

[9] We also note that surface water has been defined as “water from falling rains or 

melting snow which is diffused over the surface of the ground which 
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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.” Bulldog Battery Corp. v. Pica Inv., Inc., 736 N.E.2d 333, 339 (Ind. Ct. 

App. 2000). “It has also been determined that if the natural depressions and 

elevations of the land form a way for water but such way has no well defined

banks or channel and carries no water except that which drains into it from 

adjoining lands, then such way is not a natural water course but a mere surface 

drain.” Pflum, 892 N.E.2d at 237. 

[10] The Trust maintains that the trial court erred in finding that the water flowing 

onto its property from the Youngs’ property was “surface water” pursuant to 

the common enemy doctrine. In this case, the Youngs raised the level of their 

ground several feet when they constructed a new home on their property. After 

the construction, the Trust complained of considerable surface water from the 

Youngs’ property, which caused damage to their lot. There is no evidence, 

however, that the Youngs were collecting the surface water and casting it onto 

the Trust’s property. The Youngs’ construction only altered the flow of the 

surface water, which is permissible under the common enemy doctrine. Thus, 

the trial court properly determined that the Youngs are relieved from potential

liability regarding the surface water under the common enemy doctrine. 

[11] We recognize that the application of the common enemy doctrine in this case 

may appear harsh. However, the law is this area is well-settled: 

[A]lthough the Common Enemy Doctrine may, at times, inflict 

hardships, it is as fair to one as it is to another—a guiding precept 
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of the law. Additionally, it has worked satisfactorily in this State 

from the beginning, and it is well understood. There has been no 

change in the forces that cause water to run down hill since the 

problems caused thereby were first considered and resolved in 

this State; and there is no basis for assuming that a change in the 

rules for coping with such problems would, over-all, reduce their 

number or make them any more palatable.

Although courts should not be slow to respond to changing 

conditions, changes in the established law are not warranted 

simply because it is imperfect.

Argyelan v. Haviland, 435 N.E.2d 973, 977 (Ind. 1982).

B. Mud, Rocks, and Sediment

[12] The Trust also argues that the presence and quantity of mud, rocks, and 

sediment in the water pushes it outside the definition of “surface water” for 

purposes of the common enemy doctrine. The Youngs argue that this issue was 

not properly raised at the trial court level. We disagree. The evidence included 

witness testimony that fill, including mud, rocks, and sediment, washed from 

the Young’s property onto the Trust’s property. In addition, the Trust proposed 

the finding that “erosion was produced on the Young [property] which was 

detrimental to the [Trust property], an adjacent property.” App. Vol. II p. 51. 

[13] As discussed in the previous section, however, the common enemy doctrine 

only applies to “surface water.” We would also reiterate that “surface water”

has been defined as water from “falling rains” or “melting snow.” Bulldog 

Battery Corp., 736 N.E.2d 333, 339 (Ind. Ct. App. 2000). Rock, mud, and 

sediment are not mentioned in that definition. “In our view, whether mud, silt, 
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or sediment contained in rainwater runoff is discharged in such quantities that 

the water ceases to be characterized as surface water is a question of fact.” Long 

v. INC Indus. Coatings, Inc., 908 N.E.2d 697, 706 (Ind. Ct. App. 2009); see also 

Wells v. State Hwy. Comm’n, 503 S.W.2d 689, 692-93 (Mo. 1973) (holding that 

the jury could find that the enormous content of mud (with water) discharged 

from the defendant’s property and deposited into the plaintiff’s lake over an 

extended period of time was not classified as a discharge of surface water).

[14] The trial court was presented with all of the evidence, including photos of the 

mud, rock, and sediment on the Trust’s sidewalk, but nevertheless found that 

“water has damaged and continues to damage all things along its path.” App. 

p. 11. The trial court also specifically found that the water at issue was “surface 

water” pursuant to the common enemy doctrine. Consequently, the trial court 

did nor err when it found that the Youngs did not owe the Trust in regard to 

“the exercise of their water drainage rights.” App. p. 17. 

II. Negligence Per Se

[15] The Trust contends that it has a private cause of action under the Ordinance

and is therefore entitled to pursue its claim that the Youngs were negligent per se

when they allegedly violated the Ordinance. Accordingly, the Trust contends 

that the trial court erred in concluding otherwise. 

[16] “[N]egligence per se is the unexcused or unjustified violation of a duty 

prescribed by statute.” Brown v. City of Valparaiso, 67 N.E.3d 652, 656 (Ind. Ct. 
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App. 2016). However, it should be noted that “not every statute creates an 

implied right of action, and a claim of negligence per se depends on a 

determination of legislative intent to make a defendant liable in tort.” Id. at 

660. Generally speaking, a private party may not “enforce rights under a 

statute designed to protect the public in general and which contains an 

enforcement provision.” Id. at 658. 

[17] The purpose of the Ordinance is described in Section 1.4:

This Ordinance is intended to guide the growth and development 

of the County in accordance with the Whitley County 

Comprehensive Plan and for the following purpose. 

A. To secure adequate light, air, and convenience of 

access; and safety from fire, flood, and other dangers; 

B. To promote the public health, safety, comfort, 

convenience, morals and general welfare;

C. To plan for the future development of the County to the 

end; 

1.That the community grows only with adequate 

public ways, utility, health, educational, and 

recreational facilities;

2.That the needs of agriculture, industry, and 

business be recognized in future growth; 

3.That residential areas provide healthful 

surroundings for family life; 

4.That the growth of the community is 

commensurate with and promotes the efficient and 

economical use of public funds; and 

5. That the community strives for high aesthetic 

value, quality planning and design. 

WHITLEY COUNTY, IND., WHITLEY COUNTY ZONING ORDINANCE § 1.4 

(2006) (emphasis added). The plain language of the Ordinance shows that the 
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purpose is to protect the public in general. Moreover, Section 13.11 of the same 

Ordinance contains clear enforcement provisions: “the Plan Commission or 

any enforcement official designated by this Ordinance [to] bring an action in the 

Circuit or Superior Court of the County to evoke any legal, equitable, or special 

remedy, for the enforcement of any ordinance[.]” App. Vol. II, p. 16. The 

Trust has failed to establish that it has a private right of action pursuant to the 

Whitley County Zoning Ordinance. Accordingly, the trial court did not err 

when it found that the Trust did not have a private right of action under the 

Ordinance. 

[18] The judgement of the trial court is affirmed.

Robb, J., and Crone, J., concur.