ATTORNEY FOR APPELLANTS: ATTORNEY FOR APPELLEES:
DAVID VAN GILDER JAMES B. MOWERY
Van Gilder & Trzynka Yoder & Mowery
Fort Wayne, Indiana Kendallville, Indiana
COURT OF APPEALS OF INDIANA
TERRY CLOUSE, HELEN CLOUSE, MICHAEL )
CLOUSE, JAQUELINE CLOUSE, CHARLES )
EUGENE AKERS and EDNA AKERS, )
vs. ) No. 57A03-0310-CV-430
NOBLE COUNTY DRAINAGE BOARD and )
SCOTT ZEIGLER, )
APPEAL FROM THE NOBLE CIRCUIT COURT
The Honorable G. David Laur, Judge
Cause No. 57C01-0209-MI-61
June 4, 2004
OPINION - FOR PUBLICATION
STATEMENT OF THE CASE
In September 2002, the Noble County Drainage Board (the Board) issued its final
order regarding maintenance of the Hosler Watershed System (the Watershed), in which the
Board assessed periodic maintenance rates to be paid by persons who own land
within the Watershed. Thereafter, Terry Clouse, Helen Clouse, Michael Clouse, Jacquelyn Clouse,
Charles Eugene Akers, and Edna Akers (collectively, the Petitioners), owners of land within
the Watershed, filed a Petition for Judicial Review of the Boards final order
under Indiana Code Section 36-9-27-106. Following an evidentiary hearing, the trial court
issued findings and conclusions affirming the Boards order. The Petitioners now appeal
and present several arguments, which we consolidate into a single issue: whether
the evidence supports the trial courts determination that the Board complied with Indiana
law when it assessed the periodic maintenance rates.
FACTS AND PROCEDURAL HISTORY
The drains located within the Watershed were constructed around the year 1900.
The Watershed is comprised of approximately 2,854 acres and 164 separate parcels.
For all relevant periods, the drains in the Watershed have been regulated drains
and have been characterized as drains in need of periodic maintenance. See
Ind. Code § 36-9-27-34(a)(2) (stating county surveyor shall classify all regulated drains in
county as either drains in need of reconstruction, drains in need of periodic
maintenance, or drains that should be vacated).
Specifically, in 1985, the county
surveyor at that time classified the drains as drains in need of periodic
maintenance, but the Board ordered no assessment fees.
In 2001, flooding occurred in the Watershed along County Road 300 East.
Noble County Surveyor Scott Zeigler investigated the flooding and determined that a portion
of the Veazey tile had collapsed and was blocking water traveling downstream.
The surveyors office replaced approximately twenty feet of tile. Thereafter, Zeigler began
to inspect the status of the remaining portions of the Veazey tile, in
addition to other drains in the Watershed. He then prepared a Periodic
Maintenance Report of the Hosler Watershed System, as required by Indiana Code Section
36-9-27-38, in which he proposed that the Board assess a per acre and
minimum parcel fee to pay for several proposed maintenance projects in the Watershed.
That report clarified that although the Watershed had been classified as a
drain in need of periodic maintenance for several years, no maintenance had been
performed. Zeigler agreed with the classification and suggested that the system be
placed on maintenance at a level sufficient to perform necessary maintenance on the
regulated drains within the system. Appellants App. at 16. The report
also provided in relevant part:
I have attached hereto a list of all lands that I feel are
benefited by the Hosler Watershed System[;] the list is labeled as The Hosler
Watershed System Schedule of Assessments.[
] This list includes the parcel number and
the name of the owner of each tract of land as shown in
the record of transfers kept by the Noble County Auditor. Also included
within said list are the proposed annual assessments of each tract of land
being benefited by the periodic maintenance [of] said drain. The percent of
the total annual assessment of the system is also shown for each landowner.
The annual assessment for each tract of land is based on the reimbursement
of work that was performed at the end of 2001 and the beginning
of 2002 on the Veazey Tile. This work included the removal of
some obstructions to the tile and some minor repairs in order to correct
a severe road flooding problem on County Road 300 East. The final
bills have not been received for this project as of this date.
However, the estimate for this work is approximately $2,500.00.
The proposed work for this system would include first de-brushing and bottom dipping
of the Veazey Open ditch and replacement of the Veazey Tile to resolve
the road flooding problem on County Road 300 East. Then the Hosler
Ditch would be de-brushed and bottom dipped beginning at the bottom end and
working upstream to the top end of the system. The maintenance funds
that are collected would also be utilized to replace and repair any other
regulated tile within the system. At the proposed rates and at todays
costs, it will take approximately fifteen years to de-brush and bottom dip the
open ditches and to replace the regulated tile within the system.
The annual cost of periodic maintenance for the Hosler Watershed System is estimated
to be $37,221.65. This rate, if established by the Noble County Drainage
Board, would continue until such time that the system balance is equal to
four times the annual assessment. At that point the system would stop
collecting until the system balance drops below four times the annual assessment when
it would begin collecting again. The Noble County Drainage Board could also
determine that once a given amount of work has been performed or at
a certain time that the rates for the system would be reduced to
a lower amount.
In the process of establishing the proposed periodic maintenance rates, I have considered
all benefits (including those identified in I.C. 36-9-27-112) accruing to each parcel of
land within the Hosler Watershed System. Different parcels of land may derive
different benefits from the maintenance of the regulated drains within this system.
It is my opinion that each acre of land benefits by the below
mentioned rate per acre and that all tracts of land benefit by the
minimum rates as shown below.
Id. at 16-17. Zeigler recommended in his report that each landowner pay
$12 per acre, with a minimum rate of $75 per parcel.* * *
On February 11, 2002, the Board conducted a hearing concerning maintenance of the
During the hearing, Zeigler reported on the status of the Watershed.
The minutes of the hearing provide in relevant part:
Zeigler explained some of the problems in [the Watershed]. Recently, Zeigler walked
the main open [drain] in this watershed except for the portion south of
550 [South] and rode the 4-wheeler to inspect the [Veazey] Tile. The
bottom end of the open [drain] has [a] large amount of brush and
has about 2-feet of sediment in it. There are several log jams
and bank slides along the very winding open [drain]. Landowner, Eugene Akers[,]
has done some work privately on the tile and open drains on his
property. There were a few blowholes on his ground.
Zeigler stated that the proposed assessment sent out is $12.00 an acre, with
a $75.00 minimum. This would bring in $37,221.65 a year. This
assessment will replace or repair every county drain in the system over a
course of 15 years. This assessment rate could be cut depending on
what amount of work the Board and[/]or landowners would like to have done
and how soon. There are some tiles that could be opened up
and made into an open drain and this would save some money.
There was an emergency repair under county road 300E on the [Veazey] tile
due to flooding over the road. This needed to be done before
someone was hurt. After inspecting the [Veazey] tile[,] there were 16 blowholes
and a reverse grade. This will cost $4,000.00 to $6,000.00 to repair
just the blowholes on this one tile. It would be better just
to replace the whole [Veazey] tile instead of trying to repair the blowholes.
It would be more cost efficient.
Id. at 43-44. Zeigler also stated during the hearing that, in his
opinion, the proposed assessment rates were not excessive.
After Zeigler concluded his remarks, several landowners, including one of the Petitioners, spoke
out against the proposed assessment. Some of the landowners then agreed to
form a committee to work with Zeigler to select a periodic maintenance rate
that is acceptable for everyone. Id. at 47. The Board voted
to re-convene the issue of periodic maintenance fees for the Watershed on April
8, 2002. Id.
On March 20, 2002, Zeigler prepared his Amended Periodic Maintenance Report, which was
similar to his original report with a few exceptions. First, the amended
report clarified that the work performed in 2001 on the Veazey tile cost
$564. Second, the amended report contained five specific maintenance projects that Zeigler
recommended be completed in order but as soon as possible[.] Appellants App.
at 7. Zeigler explained the proposed projects in detail, and the projects
had estimated costs of $47,500, $8,800, $45,000, $4,800, and $4,800, respectively. The
amended report also provided:
In addition [to] the above mentioned projects, I have estimated that the system
would need $4,500 each year to perform minor repairs and maintenance of the
open and tile drains. This amount would include $1,000 for spraying and
$3,500 for minor tile and open ditch repairs. It is my recommendation
that at the amended rates[,] a maximum of $3,500 per year for no
more than two years (or a total of $7,000) would be spen[t] on
any tile system. Those tile systems are the Hosler, Freeling-Gaff, and the
N. Brown. If the tile system needs to be reconstructed then the
landowners will need to petition to reconstruct the tile, pay a separate maintenance
assessment for the tile or replace the tile themselves. The tile would
need to be reconstructed or replaced, if in the opinion of the Noble
County Surveyor the tile system could not be made to properly function for
a total cost to the tile system of less than $7,000 or $3,500
each year over a [two-year] period.
Certain landowners have expressed concern about the county de-brushing portions of the open
ditches that do not need any maintenance work performed at this time.
I would recommend that only those sections of open drains that need to
have immediate maintenance performed on them be de-brushed. However, all sections of
open ditch that are de-brushed should be sprayed to prevent the re-growth of
woody vegetation. If debris is determined to be in the channel then
the Noble County Surveyor shall notify the landowner on whose property the debris
is located and give them a reasonable time (at least ten days but
no more than ninety days and subject to weather conditions) to remove the
debris or the county will remove it at the systems expense. The
debris could include any logjam, fallen trees or other obstruction or potential obstruction
to the channel. This will not prohibit the Noble County Drainage Board
from at some time in the future de-brushing and performing maintenance on any
drain within the system. However, de-brushing would only be performed immediately prior
to a maintenance project.
FINDINGS OF FACT FOR PERIODIC MAINTENANCE
Id. at 8. Zeiglers amended report contained the same language as the
original report regarding benefits to each tract of land. However, Zeigler proposed
new, decreased periodic assessment rates as follows: $4 per acre, with a
minimum rate of $25 per parcel for ten years and, thereafter, $2 per
acre with a minimum rate of $25 per parcel.
The Board reconvened its hearing on the Watershed on September 9, 2002.
After Zeigler discussed his amended report and members of the public commented, the
Board adopted Zeiglers amended report and ordered that the periodic maintenance projects outlined
in that report be performed. The Board then issued both Findings of
Fact for Periodic Maintenance and a Final Order for the Periodic Maintenance of
the Hosler Tile Watershed System, which provide in relevant part:
* * *
3. The Surveyors fact sheet shall be accepted as part of the evidence and
the facts thereon are true.
4. The drain/system is classified as, In need of Periodic Maintenance.
5. There will be no damages paid to any landowners for this project.
6. None of the [following] benefit factors of Section 112 of the [Indiana Code]
A. The watershed affected by the drain to be maintained;* * *
B. The number of acres in each tract;
C. The total volume of water draining into or through the drain to be
maintained, and the amount of water contributed by each landowner;
D. The land use;
E. The increased value accruing to each tract of land from the maintenance;
F. Whether the various tracts are adjacent, upland, upstream, or downstream in relation to
the main trunk of the drain;
G. Elimination or reduction of damage from floods;
H. The soil type; and
I. Any other factors affecting the reconstruction.
10. That the Surveys report to the Board with maps and drawings is received
as evidence, approved by the Board, and facts therein are found to be
11. That all of the lands included in the watershed are assessed.
12. That no lands outside the watershed are assessed.
13. That none of the benefits assessed against any landowner are excessive.
14. That no further evidence is required for the Board to make a decision.* * *
20. That the drain as a whole is in need of periodic maintenance and
the current rates are insufficient to make the necessary repairs.
* * *
24. That all relevant documentation in the files of the Surveyor and the Board
regarding this drain is received into evidence by the Board.
25. That the schedule of assessments as revised and filed are adopted by the
26. That the Secretary of the Board shall publish the notice of the Boards
Final Order as required by the [Indiana Code].
27. That the Final Order form of the Board is approved for this drain. FINAL ORDER FOR THE PERIODIC MAINTENANCE OF THE HOSLER WATERSHED
* * *
1. Jurisdiction. That the existing drains are regulated drains, and are within the
jurisdiction of this Board, pursuant to I.C. 36-9-27-15.
2. Report of Surveyor. That the Board referred the Hosler Watershed System herein
to the surveyor to prepare a report, which report was filed and presented
to this Board on February 11, 2002[,] in the Dekko Conference Room of
the South County Office Complex, Albion, Indiana.
3. Schedule of Assessments. That the Board then prepared a schedule of assessments
and damages pursuant to I.C. 36-9-27-42, naming each landowner benefited or damaged, his
address, percent of total cost to be assessed against each tract of land
based upon benefit received, and showing the amount of each owners annual assessment
based on the total estimated cost of the proposed periodic maintenance.[
]* * *
7. Evidence Concerning Objections. Pursuant to I.C. 36-9-27-42[,] at the final hearing the
[Board] heard and considered all written objections and evidence filed and has entered
an order, as justice has required.
* * *
10. Amendment to Surveyors Report. The original . . . Surveyors report w[as]
presented to the Board on February 11, 2002. The Surveyors report was
further amended in accordance with the results of the hearing [and an] Amended
Report was presented on April 8, 2002.
11. Periodic Maintenance. Said watershed system is in need of periodic maintenance and
the total estimated annual cost of periodic maintenance of said drain is $12,594.10.* * *
17. FINDING OF FACTS. After hearing all the evidence presented at the hearing,
for and against, the Board made the following findings:
[reference to Findings of Fact set forth above.]
NOW THEREFORE, IT IS ORDERED by the [Board] that:
A. The Findings of Fact are adopted by the Board as true and accurate
for this proceeding; AND
B. The report of the Surveyor, the schedule of assessments, and any amendments shall
be adopted and the periodic maintenance rates shall be increase[ed] as follows:
$4.00/Acre with a $25.00 Minimum Rate per Tract of Land for TEN years
$2.00/Acre with a $25.00 Minimum Rate per Tract of Land thereafter (2013
Appellants App. at 12-14.
On September 27, 2002, the Petitioners filed a petition for judicial review of
the Boards final order, alleging in relevant part: (1) the Boards order
was arbitrary, capricious, unlawful or not supported by substantial evidence; (2) the Boards
order was not based upon the benefits that would allegedly accrue to each
tract of land as a result of the Boards determination[;] (3) the Petitioners
land will not be benefited by the periodic maintenance; (4) the Petitioners land
will be damaged by the periodic maintenance; (5) the Board failed to substantiate
that the regulated drain[s] within the Hosler Watershed system are not performing the
function[;] and (6) the Board failed to consider the factors listed at Indiana
Code Section 36-9-27-112 in determining benefits to the individual tracts. Appellants App.
The trial court conducted a hearing on the petition for judicial review on
July 18, 2003. During that hearing, the Petitioners testified to the details
of each of their respective tracts of land to support their claim that
the periodic maintenance ordered by the Board would not benefit their land.
In addition, Anthony Fleming, a geologist who specializes in hydrogeology and also a
landowner in the Watershed, testified at length regarding the alleged need and/or benefit
of the periodic maintenance projects ordered. Flemings testimony, as a whole, conflicted
with the evidence and opinions Zeigler had expressed at the hearings. Zeigler
also testified at length regarding, among other things, the process by which he
reached the assessment rates recommended in his original and amended reports.
At the conclusion of the evidence, the parties agreed to submit proposed findings
and conclusions to the court. On September 16, 2003, the trial court
issued its Findings and Order of the Court, which provided in relevant part:
4. That the Court heard de novo the issues regarding plaintiffs claim that land
owned by them was not benefited by the proposed drainage work and that
the plaintiffs will suffer damages as a result of the defendants proposed work
(as required by I.C. § 36-9-27-107);
5. That all other issues raised by plaintiffs have been considered and determined exclusively
upon the record made before the board and filed with the court (Id.);* * *
7. That the plaintiffs failed to prove that property they own would be damaged
as a result of the proposed periodic maintenance;
8. That the defendant has proven that the acreage owned by the plaintiffs will
benefit both directly and indirectly, from the proposed maintenance.
9. That the alleged uniform assessment used by the defendant was not arbitrary and
was based upon substantial evidence as presented by the Noble County Surveyor;
10. That the Noble County Surveyor did conduct an assessment of the benefits and
damages that would accrue to each tract of land and presented this information
to the Board which based its decision on this assessment[.]
11. That the defendants considered all relevant factors and made all required findings necessary
to issue its final order in compliance with Indiana law.* * *
Therefore, the Court hereby affirms the Noble County Drainage Boards Final Order For
Periodic Maintenance Of The Hosler Tile Watershed System.
Id. at 4-5 (bold in original). The Petitioners now appeal.
DISCUSSION AND DECISION
Standard of Review
Indiana Code Section 36-9-27-107 governs judicial review of a drainage board decision, and
subsection (c) of that statute provides that [i]n affirming or setting aside a
decision or determination of the board, the court shall enter its findings and
order or judgment on the record. In addition, Indiana Trial Rule 52(A)(3)
states in relevant part that the trial court shall make special findings of
fact without request in any . . . case provided by these rules
or by statute. (Emphasis added). Accordingly, the trial court in this
case was required to enter special findings of fact. See id.
We apply a two-tiered standard of review to special findings entered under Trial
Rule 52(A). See Stonger v. Sorrell, 776 N.E.2d 353, 358 (Ind. 2002).
First, we determine whether the evidence supports the findings and second, whether
the findings support the judgment. Id. We will set aside the
trial courts findings and conclusions only if they are clearly erroneous. See
id. In reviewing the trial courts 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. Carmichael v. Siegel, 754 N.E.2d 619, 625 (Ind.
Ct. App. 2001).
Indiana Drainage Law
Before we address the Petitioners arguments, we note the procedural posture in which
this matter came before the trial court. Indiana Code Section 36-9-27-107 provides
in relevant part:
(a) Whenever a petition for judicial review is filed on the ground that:
(1) the board found that the petitioners land would be benefited by the .
. . maintenance of a drain, and the benefits assessed were excessive; or
(2) the petitioners lands would be damaged by the . . . maintenance of
a drain; and:
(A) the board failed to so find; or
(B) the amount of damages awarded was inadequate;
the court shall proceed to hear the issue of benefits or damages de
novo. A change of venue may be taken from the judge and
from the county, and a jury trial may be obtained, in accordance with
the rules governing the trial of civil actions. An appeal may be
taken in accordance with the rules governing appellate procedure.
(b) Whenever a petition for judicial review is filed on any ground other than
those set forth in subsection (a), the review shall be heard by the
court without the intervention of a jury. The court may not try
or determine the cause de novo, but shall consider and determine the cause
exclusively upon the record made before the board and filed with the court
. . . .* * *
(d) When a petition for judicial review presents issues that shall be heard de
novo and issues that may not be heard de novo, the court shall
separate the issues and shall proceed to determine the issues that may not
be heard de novo. When the courts judgment on the issues that
may not be heard de novo becomes final, or when the appeal is
decided if an appeal is taken, the board shall proceed in accordance with
the final judgment or appellate decision despite the fact that the issues to
be heard de novo may be undecided and pending before the court or
Here, at the beginning of the hearing on July 18, 2003, the trial
court acknowledged its statutory duty to separate those issues it was to review
de novo from other claims the Petitioners had raised in their petition for
See footnote In particular, the trial court was required under the statute
to review de novo the Petitioners claims regarding benefits and/or damages to their
land as a result of the periodic maintenance. In addressing all other
claims, the trial court, and this court, is limited to the record that
was before the Board when it issued its final order.
In addition to the statute that explains the trial courts de novo review
of certain issues, the Petitioners arguments primarily involve two statutes. Indiana Code
Section 36-9-27-39 provides:
When the board receives a maintenance report[
] under section 38 of this chapter,
it shall prepare a schedule of assessments that includes the following items:
(1) A description of each tract of land determined to be benefited, and the
name and address of the owner, as listed on the county surveyors report.
(2) The percentage of the estimated cost of periodically maintaining the drain to be
assessed against each tract of land. The percentage shall be based upon
the benefit accruing to each tract of land from the maintenance, and must
be at least one hundred percent (100%) and as near to one hundred
percent (100%) as is practicable.
(3) The amount annually assessed against each tract of land for maintenance.
The board may consider the factors listed in section 112 of this chapter
in preparing the schedule.
I.C. § 36-9-27-39 (emphases added). And Indiana Code Section 36-9-27-112 provides in
(a) In determining benefits to land under sections 39 . . .
of this chapter, the board may consider:
(1) the watershed affected by the drain to be . . . maintained;
(2) the number of acres in each tract;
(3) the total volume of water draining into or through the drain to be
. . . maintained, and the amount of water contributed by each land
(4) the land use;
(5) the increased value accruing to each tract of land from the . .
(6) whether the various tracts are adjacent, upland, upstream, or downstream in relation to
the main trunk of the drain;
(7) elimination or reduction of damage from floods;
(8) the soil type; and
(9) any other factors affecting the . . . maintenance.
(b) In determining benefits or damages to land under sections 39 . . .
of this chapter, the board may examine aerial photographs and topographical or other
maps, and may adjourn the hearing to the site of the . .
. maintenance in order to personally view the affected land. The Petitioners Arguments
The Petitioners set out the trial courts findings numbered 7 through 11 as
pertinent to their appeal. Brief of Appellant at 15. However, they
do not challenge the sufficiency of the evidence to support each of those
findings. Rather, the Petitioners arguments are most easily characterized as an attack
on the trial courts finding that the Board considered all relevant factors and
made all required findings necessary to issue its final order in compliance with
Indiana law[.] Appellants App. at 4-5.
See footnote To the extent that the
Petitioners do address particular findings, we discuss those below.
A. Record Before the Board
We first address those issues, the review of which the trial court
was limited to the record before the Board. First, the Petitioners claim
that there is no evidence to show that the regulated drains were not
performing their functions and, thus, the Board had no grounds to support its
decision to approve and adopt the surveyors classification of the drains as drains
in need of periodic maintenance. In support of their argument, the Petitioners
direct us to Indiana Code Section 36-9-27-34(b)(1). But that subsection of the
statute relates to drains in need of reconstruction, not drains in need of
periodic maintenance. As we have already noted, subsection (c) of Indiana Code
Section 36-9-27-34, not subsection (b), sets forth the criteria relevant to the surveyors
decision to classify a regulated drain as a drain in need of periodic
maintenance. See n. 2, supra. None of the criteria under subsection
(c) define a drain in need of periodic maintenance as a drain that
will not perform the function for which it was designed and constructed.
See I.C. § 36-9-27-34(b)(1) (addressing drain in need of reconstruction). Thus, the
Petitioners reliance on subsection (b) is misplaced.
Nevertheless, Zeiglers original and amended reports, along with his statements at the Board
hearings, are sufficient to support the determination that the regulated drains in the
Watershed are drains in need of periodic maintenance. In particular, Zeiglers reports
and statements at the hearing address the flooding of County Road 300 East,
which was caused by problems with the Veazey tile. His reports also
detail the need for de-brushing along different areas of the Open ditch.
And Zeigler explained at the February 2002 hearing that he discovered various problems
with the drains after he walked the Open ditch and, using a four-wheeler,
inspected the Veazey tile. Further, the record before the Board establishes that
the regulated drains in the Watershed had had little or no maintenance since
1985 and perhaps long before that. In sum, the Petitioners claim that
the Board had no grounds to support its determination that the regulated drains
are in need of periodic maintenance is incorrect. See I.C. § 36-9-27-34(c)
(explaining regulated drain is in need of periodic maintenance when it can be
made to perform function for which it was designed or constructed and to
properly drain all affected land under current conditions by periodically cleaning, spraying, removing
obstructions from, or making minor repairs to drain).
The Petitioners also assert that the evidence does not support the trial courts
finding that the Board considered the factors listed under Indiana Code Section 36-9-27-112(a)
when it determined that their tracts of land would benefit from the periodic
See footnote Again, under Indiana Code Section 36-9-27-39, after the Board receives a
maintenance report from the surveyor, it shall prepare a schedule of assessments that
includes certain items. One of those items is [a] description of each
tract of land determined to be benefited . . . . I.C.
§ 36-9-27-39(1). That statutes also provides that the board
may consider the
factors listed in section 112 . . . in preparing the schedule.
I.C. § 36-9-27-39 (emphasis added). And under Indiana Code Section 36-9-27-112(a), in
determining benefits to land for purposes of the schedule of assessments, the Board
may consider the factors listed therein, in addition to any other factors affecting
First, we agree with the Board that it is not required to consider
the factors under section 112(a) when determining benefits to land. Indeed, both
Indiana Code Section 36-9-27-39 and Indiana Code Section 36-9-27-112 use the word may.
The term may in a statute ordinarily implies a permissive condition and
a grant of discretion. Romine v. Gagle, 782 N.E.2d 369, 380 (Ind.
Ct. App. 2003) (citing Schoemer v. Hanes & Assoc., Inc., 693 N.E.2d 1333
(Ind. Ct. App. 1998)), trans. denied. As this court explained in Whitley,
Noble and Allen Joint Drainage Board v. Tschantz, 461 N.E.2d 1146, 1149 (Ind.
Ct. App. 1984), section 112(a) was adopted by the legislature to provide guidance
for determining the benefits which accrue to various tracts of land within a
watershed. (Emphasis added). Thus, while the Board could, in its discretion,
look to section 112(a) in determining benefits, consideration of those factors is not
required under the law, and if the Board had failed to consider those
factors, their assessment would not necessarily be arbitrary or invalid.
In any event, our review of the record that was before the Board
supports the trial courts finding that the Board considered all relevant factors.
Appellants App. at 6. Zeiglers original and amended reports state that, in
the process of establishing the proposed periodic maintenance rates, he considered all benefits
(including those identified in I.C. 36-9-27-112) accruing to each parcel of land within
the Hosler watershed System. Id. at 9, 17. Both reports also
summarize that [d]ifferent parcels of land may derive different benefits from the maintenance
of the regulated drains within the system[,] and that in his opinion, each
acre of land benefits by [$4 per acre] and that all tracts of
land benefit by the minimum rate [of $25]. Id. In addition,
during the February 2002 hearing, one of the Board members asked Zeigler whether
he had assessed all benefits and whether the benefits were excessive. Zeigler
responded that, in his opinion, the benefits are not excessive. Id. at
45. Based on Zeiglers reports and statements at the hearing, the Board
found that [n]one of the benefit factors of Section 112 . . .
are excluded[.] Id. at 12.
Further, while the Petitioners focus on the factors listed under section 112(a), the
record also shows that Zeigler presented the Board with aerial photographs, drainage maps,
and drawings of the Watershed. In addition to the factors listed under
section 112(a), that statute also permits the Board to review aerial photographs and
topographical and other maps in determining benefits or damages to land. See
I.C. § 36-9-27-112(b). Therefore, we conclude that there was evidence before the
Board to support the trial courts finding that the Board considered all statutory
factors in determining benefits.
Still, the Petitioners point out that the Boards findings of fact do not
explain what benefits were considered as to each acre or tract of land.
Brief of Appellants at 17. Similarly, they complain that the copy
of the final order that the Board sent to the Akers did not
identify the specific benefits to the Akers land. To the extent that
the Petitioners allege that the Board was required to: (1) identify all
benefits considered and/or determined regarding each of the 164 tracts in its findings
of fact, or (2) set out the specific benefits to each acre or
tract when it gave notice to every landowner in the Watershed, we conclude
that the Petitioners are reading requirements into the applicable statutes that do not
exist. Indeed, nothing in Indiana Code Section 36-9-27-39 (schedule of assessments) or
Indiana Code Section 36-9-27-112 (benefits board may consider in determining benefits or damages)
requires the Board to explain or identify the specific benefits to each acre
or tract of affected land. Rather, Indiana Code Section 36-9-27-39 sets forth
the only requirements with which the Board must comply when it prepares a
schedule of assessments. Although subsection (2) of that statute, which requires the
Board to include the percentage of the estimated cost of periodically maintaining the
drain to be assessed against each tract of land, does state that the
percentage shall be based upon the benefit accruing to each tract of land
from the maintenance, there is no requirement that the Board identify the specific
benefits to each tract. Again, the evidence before the Board supports the
trial courts findings on this issue.
B. De Novo Review
The only issue the trial court heard de novo was whether the Petitioners
land would be benefited and/or damaged by the periodic maintenance and whether the
benefits assessed were excessive. The Petitioners allege that the evidence presented both
to the Board and to the trial court at the July 18 hearing
fails to support the trial courts finding that the [Board] has proven that
the acreage owned by the [Petitioners] will benefit both directly and indirectly, from
the proposed periodic maintenance. Appellants App. at 4.
In both his original and amended reports, Zeigler expressed his belief that all
land included on The Hosler Watershed System Schedule of Assessments will benefit from
periodic maintenance. And as we discussed above, see A. Record Before the
Board, supra, Zeiglers amended report provides that [d]ifferent parcels of land may derive
different benefits from the maintenance of the regulated drains within the system[,] and
that in his opinion, each acre of land benefits by [$4 per acre]
and that all tracts of land benefit by the minimum rate [of $25].
Appellants App. at 9. In addition, Zeigler stated during the February
2002 hearing that, in his opinion, the benefits [assessed] are not excessive.
Id. at 45.
At the hearing on July 18, 2003, Zeigler discussed the particular benefits to
the Akers land as follows:
Well number one, that if there was no maintenance performed on that at
all then certainly you would not be able to . . . produce
a crop on the land that he has there. And I think
as indicated by Mr. Akers . . . testimony before that he has
maintained that drain over the years by himself. So that, that benefit
is derived because of the maintenance . . . .
Transcript at 117. Similarly, Terry Clouse testified that in 1997, his family
installed tile on their property to get rid of standing water. That
the Akers and the Clouses have performed their own maintenance over the years
supports a reasonable inference that periodic maintenance performed by the county will benefit
their land in the future. In determining whether lands are benefited, .
. . it is not necessary that the benefits be direct and immediate
to justify an assessment. Future possibilities, if any, as well as collateral
or indirect benefits, may be considered. Hubenthal v. Crain, 239 Ind. 646,
159 N.E.2d 850, 853 (1959) (quotations and citation omitted).
Zeigler also explained that after he personally viewed the various tracts of land
within the Watershed and studied various drainage maps, and based upon his knowledge
of the county and years of experience, he evaluated the benefits to each
tract. He explained that all of the land in the Watershed is
agricultural. And although different tracts would benefit for different reasons, he determined
that, on balance, each tract would benefit equally from periodic maintenance. In
particular, regarding the volume of water from each tract, he stated:
In this case here, there are no Wal-Marts, there . . . really
are no towns. There are, its just some agricultural land and some
houses. So in essence, the volume of water is very similar from
one to another. Yeah you can say, okay the woods contributes a
little bit more than the corn, uh, or the, it contributes a little
less [than] the corn, excuse me, that the woods would discharge slightly less
water than what a cornfield would, or slightly more water than pasture ground
would. But to calculate that, no I didnt do that. I
just know that . . . within the bounds of that Watershed that
parcels are in general discharging fairly equal amounts of water into the system.
Transcript at 110-11. When asked whether his determination of benefits to the
land was based on mere assumptions, he stated:
I didnt assume. I viewed that myself and . . . I
viewed the uses of those land[s] myself, personally and I made an expert
opinion based on my years of training and expertise in the county that
. . . those discharges of water for those land uses were equal.
Id. at 112-13. And in explaining what he meant when he testified
that the benefits and damages to the various tracts of land zeroed out,
he stated in relevant part:
Well only what were looking at is an assessment. At some point
in this process we have to arrive at a dollar amount that were
going to equate to each tract of land. Whether that be a
different dollar for every single acre, or whatever it is, . . .
in essence weve determined the benefits are equal so its an equal, you
know assessment . . . for all those parcels. So at some
point we have to end up . . . at a dollar amount
for those parcels of land. So we have to have some process
in order to . . . look at those different factors to determine
is there one particular geographic area that has substantially less benefit than another
area, or are those in essence fairly equal. So . . .
before we get to the dollar amount were trying to determine in essence
is each acre in general within that Watershed similarly benefited . . .
when you look at all those factors, or does there seem to be
some sort of a dividing line for instance that . . . indicates,
that they have a substantially higher benefit that they need to be assessed
differently . . . . So thats I guess maybe in essence
what I was meaning, that they . . . zeroed out. That
in essence there wasnt one parcel of land, one tract of land .
. . that appeared to have substantially higher benefit or lesser benefit than
any of the other ones.
Id. at 153-54.
C. Was the assessment arbitrary as a matter of law?
Still, the Petitioners direct us to Flemings testimony, which contradicts Zeiglers statements that
all tracts will benefit equally. For example, Fleming testified that wooded tracts
produce less water flow and that uplands would receive no benefit from periodic
maintenance. And Akers, whose family has owned 152 acres in the Watershed
since 1937, testified that he has not had problems with flooding on his
property. Clouse, whose family has owned 159 acres in the Watershed since
1941, also denied any problems with his land flooding. But we will
not reweigh the evidence at the hearing, see Stonger, 776 N.E.2d at 358,
and based on our review of the record, the Petitioners have not firmly
convinced us that the trial court made a mistake when it found that
the Petitioners will benefit both directly and indirectly from the periodic maintenance.
See Carmichael, 754 N.E.2d at 625; see also Hubenthal, 239 Ind. 646, 159
N.E.2d at 853 (explaining benefits to land need not be direct and immediate).
Finally, the Petitioners contend that the trial court erred when it affirmed the
Boards final order because the uniform per acre assessment is arbitrary as a
matter of law. In support, they direct us to Hubenthal and Whitley.
But we agree with the Board that those cases are distinguishable.
In Hubenthal, 159 N.E.2d at 851-52, the appellants successfully attacked the method by
which the county had assessed the land in a watershed for the purpose
of repairing an open ditch. The county ordered certain per acre assessments,
which the trial court reduced after a hearing. Id. The supreme
court explained that:
In this case the assessment per acre was arrived at initially by the
surveyor and viewers and finally by the court by first estimating the cost
of an arbitrary segment of ditch which laid within a watershed area and
then dividing the number of acres in the watershed area into said estimated
cost. The extent to which the particular land would or would not
be benefited as compared with other land in the area was not considered
in establishing the particular assessment.
Id. at 852 (emphasis added). The court emphasized that the clear mandate
of the statute in effect at that time was that the costs of
installation or repair of drains shall be apportioned according to the benefits derived
therefrom. Id. at 853 (quotations and citation omitted). Because the assessment
in that case did not take into account benefits to the tracts of
land, the court reversed the trial courts judgment and remanded for a new
More recently in Whitley, 461 N.E.2d at 1147, the drainage board approved a
project to clear the Eel River and ordered a uniform assessment upon all
tracts of land within the Eel River watershed. But as in Hubenthal,
the drainage board in Whitley did not assess the benefits to each tract
of land. Instead, the theory behind the uniform assessment was that every
acre of land which drained into the river contributed to the drainage problems
and, thus, all tracts must pay equally. Id. at 1147-48. When
landowners challenged the assessment in their petition for judicial review, the trial court
concluded that the assessment was arbitrary, and we affirmed the trial courts conclusion
on appeal. Indeed, we followed Hubenthal and clarified that the current drainage
statutes retain the prior laws requirement that assessments be based upon benefits accruing
from the maintenance. Id. at 1148.
The Petitioners suggest that Hubenthal and Whitley establish that uniform per acre assessments
are per se invalid. We disagree. Those cases merely clarify the
requirement that currently appears in Indiana Code Section 36-9-27-39(2), namely, that the percentage
of the cost of periodic maintenance assessed to each tract of land shall
be based upon the benefit accruing to each tract from the maintenance.
As we have discussed throughout this opinion, the Board in this case did
not impose a per acre assessment rate without considering the benefits and damages
to the affected tracts of land. Our review of Zeiglers surveyors reports
and his testimony at the July 18, 2003, hearing establishes that he recommended
the per acre and minimum per parcel rates after he had viewed the
tracts and land and considered the various benefit factors set out under Indiana
Code Section 36-9-27-112(a), in addition to aerial photographs and drainage maps. Based
on all of those considerations, Zeigler concluded that each tract of land would
benefit equally from the periodic maintenance, and the Board adopted his recommendation.See footnote
Because the Board considered the benefits to the tracts of land,
Whitley are inapposite. In a watershed system, drainage within the watershed does
not respect property lines, and a pro-ration of benefits and assessments based on
acreage is not unreasonable, provided that the benefits have been considered. We
conclude that the Boards per acre and minimum per parcel assessment rates are
not arbitrary as a matter of law, and the trial court did not
err when it affirmed the Boards final order.
KIRSCH, C.J., and RILEY, J., concur.
A regulated drain means an open drain, a tiled drain,
or a combination of the two. Ind. Code § 36-9-27-2. An
open drain means a natural or artificial open channel that: (1) carries
surplus water; and (2) was established under or made subject to any drainage
Id. A tiled drain means a tiled channel that:
(1) carries surplus water; and (2) was established under or made subject to
any drainage statute. Id. Our review of the record reveals that
the Watershed consists of a combination of at least one open drain and
at least one tiled drain.
A regulated drain is in need of periodic maintenance when, with
or without the use of mechanical equipment, it can be made to perform
the function for which it was designed and constructed, and to properly drain
all affected land under current conditions, by periodically:
(1) cleaning it;
(2) spraying it;
(3) removing obstructions from it; and
(4) making minor repairs to it.
Ind. Code § 36-9-27-34(c).
Footnote: The schedule of assessments was not included in either partys appendix.
Prior to that date, the Petitioners, along with other landowners, filed
Objections to Proposed Assessment with the Board.
The record suggests that the Board did reconvene on April
8, 2002, but we do not have the minutes for that hearing, nor
do the parties discuss that hearing.
Footnote: Again, the schedule of assessments was not made part of the
record on appeal.
Footnote: Contrary to the statute, the trial court did not proceed
to determine the issues that may not be heard de novo.
I.C. § 36-9-27-107(d). Rather, the trial court addressed all issues in a
single judgment. Neither party claims that this amounts to error, and we
find no harm given that the court separated the benefits and damages issues
from the other claims the Petitioners raised in their petition.
See I.C. § 36-9-27-38 (providing that surveyor shall prepare report
for regulated drains classified in need of periodic maintenance).
The Petitioners complain that the trial courts findings do not
inform the litigants of the specific evidentiary foundation for its decision. Brief
of Appellants at 15. Our courts have, on occasion, remanded cases where
the trial court issued special findings that were merely a recitation of the
evidence presented at the hearing.
See In re T.J.F., 798 N.E.2d 867,
874 (Ind. Ct. App. 2003). But the Petitioners do not request that
we remand the case for entry of more specific findings, and the courts
findings in this case are more than a mere recitation of facts.
Indeed, the trial courts findings have allowed the Petitioners to formulate intelligent and
specific arguments on appeal. See id. (explaining trial courts duty to enter
findings that allow parties to formulate arguments on appeal). We conclude that
the trial courts findings are sufficient.
The trial court did not make a specific finding that
the Board considered the factors under section 112. However, the trial court
did find that the Noble County Surveyor did conduct an assessment of the
benefits and damages that would accrue to each tract of land and presented
this information to the Board which based its decision on this assessment.
Appellants App. at 5. The court also found in relevant part that
the Board considered all relevant factors . . . in compliance with Indiana
Again, however, that statute does not require the Board to
identify the benefits assessed to each parcel in its assessment order.
Footnote: In support of their assertion that the Boards assessment was
arbitrary, the Petitioners also emphasize that Zeigler reduced the rate of his recommended
per acre assessment from January to March based only on the fact that
the scope of the maintenance work to be performed had been reduced.
In particular, Zeigler reduced the rates he proposed in his January report, $12
per acre with a $75 minimum per tract, to $4 per acre with
a $25 minimum per tract in his March report. The Petitioners claim
that that evidence supports a conclusion that the Board did not consider the
benefits to the tracts of land when it adopted the rates Zeigler recommended
in his amended report. But Zeigler explained that none of the benefits
changed between January and March and that in the two assessments . .
. [t]he rates came down proportionally. Transcript at 105. He explained
Again, my opinion is that [the benefits and damages to the tracts of
land] were just proportionally reduced. The . . . original proposal was
for total replacement of all open drains and tiles within the system and
were doing proportions less than that so the benefits associated, you know, were
. . . reduced proportionally.
Id. at 106.