CHAPTER 27.4. REMOVAL OF OBSTRUCTIONS IN MUTUAL DRAINS AND NATURAL SURFACE WATERCOURSES
IC 36-9-27.4
Chapter 27.4. Removal of Obstructions in Mutual Drains andNatural Surface Watercourses
IC 36-9-27.4-1
"Drain" defined
Sec. 1. As used in this chapter, "drain" refers to a mutual drain (asdefined in IC 36-9-27-2).
As added by P.L.239-1996, SEC.3 and P.L.240-1996, SEC.2.
IC 36-9-27.4-2
"Drainage board" defined
Sec. 2. As used in this chapter, "drainage board" means thefollowing:
(1) Except as provided in subdivision (2):
(A) the county board of commissioners, as provided inIC 36-9-27-5(a)(1); or
(B) the drainage board appointed by the board ofcommissioners under IC 36-9-27-5(a)(2).
(2) In a county having a consolidated city, the board of publicworks of the consolidated city, as provided in IC 36-9-27-5(b).
As added by P.L.239-1996, SEC.3 and P.L.240-1996, SEC.2.
IC 36-9-27.4-3
"Natural surface watercourse" defined
Sec. 3. As used in this chapter, "natural surface watercourse"means an area of the surface of the ground over which water fromfalling rain or melting snow occasionally and temporarily flows in adefinable direction and channel.
As added by P.L.239-1996, SEC.3 and P.L.240-1996, SEC.2.Amended by P.L.276-2001, SEC.17.
IC 36-9-27.4-4
"Obstruction" defined
Sec. 4. (a) As used in this chapter, "obstruction" means acondition that:
(1) exists within or near a drain; and
(2) prevents or significantly impedes the flow of water throughthe drain.
(b) The term includes the following:
(1) The presence of:
(A) one (1) or more objects inside or near a drain;
(B) a quantity of materials inside or near a drain; or
(C) damage to a drain;
that prevents or significantly impedes the flow of water throughthe drain.
(2) Obstructions that:
(A) are created intentionally; and
(B) occur naturally or are created unintentionally.
As added by P.L.239-1996, SEC.3 and P.L.240-1996, SEC.2.
IC 36-9-27.4-5
"Owner" defined
Sec. 5. As used in this chapter, "owner" means a person whoholds a possessory legal interest in land.
As added by P.L.239-1996, SEC.3 and P.L.240-1996, SEC.2.
IC 36-9-27.4-6
"Person" defined
Sec. 6. As used in this chapter, "person" means an individual, acorporation, a limited liability company, a partnership, or any otherlegal entity.
As added by P.L.239-1996, SEC.3 and P.L.240-1996, SEC.2.
IC 36-9-27.4-7
"Respondent" defined
Sec. 7. As used in this chapter, "respondent" means an owner ofthe tract of land that is the subject of a petition seeking the removalof an obstruction under this chapter.
As added by P.L.239-1996, SEC.3 and P.L.240-1996, SEC.2.
IC 36-9-27.4-8
"Tract" defined
Sec. 8. As used in this chapter, "tract" means an area of land thatis:
(1) under common fee simple ownership;
(2) contained within a continuous border; and
(3) a separately identified parcel for property tax purposes.
As added by P.L.239-1996, SEC.3 and P.L.240-1996, SEC.2.
IC 36-9-27.4-9
Petition for removal of obstruction
Sec. 9. If:
(1) a person who owns a tract of land seeks the removal of anobstruction from a drain or natural surface watercourse locatedoutside the person's tract in order to promote better drainage ofthe person's tract; and
(2) the owner of the land on which the obstruction is located,upon request, does not remove the obstruction;
the person seeking the removal of the obstruction may file a petitionunder this chapter asking the drainage board in the county in whichthe obstruction is located to remove, or authorize or order theremoval of, the obstruction under this chapter.
As added by P.L.239-1996, SEC.3 and P.L.240-1996, SEC.2.
IC 36-9-27.4-10
Required contents of petition
Sec. 10. A petition filed by a person described in section 9(1) ofthis chapter must include the following:
(1) A general description of the tract of land owned by thepetitioner. (2) A general explanation of the need for the removal of theobstruction.
(3) A general description of the site of the obstruction.
As added by P.L.239-1996, SEC.3 and P.L.240-1996, SEC.2.
IC 36-9-27.4-11
Filing fee
Sec. 11. The drainage board may require, as a condition of filinga petition under this chapter, the payment of a filing fee. Thedrainage board may not set the filing fee at an amount greater thanis reasonably necessary to defray the expenses incurred by the boardin processing a petition.
As added by P.L.239-1996, SEC.3 and P.L.240-1996, SEC.2.
IC 36-9-27.4-12
Investigation by county surveyor; duties of drainage board afterreceiving report of obstruction
Sec. 12. (a) If a petition filed under this chapter alleges theobstruction of:
(1) a drain; or
(2) a natural surface watercourse;
the county surveyor of the county in which the obstruction is allegedto exist shall promptly investigate whether the obstruction exists.
(b) If the county surveyor, upon investigation, finds an existingobstruction in a drain or natural surface watercourse in the locationalleged in the petition, the county surveyor shall report the existenceof the obstruction to the drainage board.
(c) Upon receiving a report from the county surveyor undersubsection (b), the drainage board shall:
(1) set a date for a hearing on the petition; and
(2) serve notice of the hearing on each owner of the land onwhich the obstruction exists who can be identified in therecords of the county recorder.
(d) The hearing must be held at least thirty (30) days but less thanninety (90) days after the date of the filing of the petition.
(e) Notice of a hearing must be mailed to each respondent withreturn receipt requested.
As added by P.L.239-1996, SEC.3 and P.L.240-1996, SEC.2.Amended by P.L.276-2001, SEC.18.
IC 36-9-27.4-13
Postponement and rescheduling of hearing
Sec. 13. Before or on the date of a hearing held under this chapter,the drainage board may postpone and reschedule the hearing if:
(1) it appears that a respondent has not been served with notice;or
(2) the interests of fairness otherwise compel a postponement.
As added by P.L.239-1996, SEC.3 and P.L.240-1996, SEC.2.
IC 36-9-27.4-14 Findings of board
Sec. 14. (a) If, after a hearing held under this chapter, the drainageboard finds that:
(1) the obstruction of a drain or a natural surface watercoursethat is alleged in the petition exists; and
(2) the removal of the obstruction will:
(A) promote better drainage of the petitioner's land; and
(B) not cause unreasonable damage to the land of therespondents;
the drainage board shall find for the petitioner.
(b) If, after a hearing held under this chapter, the drainage boardis unable to make the findings described in subsection (a), thedrainage board shall deny the petition.
As added by P.L.239-1996, SEC.3 and P.L.240-1996, SEC.2.
IC 36-9-27.4-15
Drainage board determining whether obstruction createdintentionally
Sec. 15. If the drainage board finds for the petitioner under section14(a) of this chapter, the board shall determine, based upon apreponderance of the evidence, whether the obstruction of the drainor natural surface watercourse was created intentionally by any of therespondents.
As added by P.L.239-1996, SEC.3 and P.L.240-1996, SEC.2.
IC 36-9-27.4-16
Duty of board upon finding of intentional obstruction
Sec. 16. (a) If the drainage board finds:
(1) for the petitioner under section 14(a) of this chapter; and
(2) under section 15 of this chapter that the obstruction of thedrain or natural surface watercourse was created intentionallyby at least one (1) of the respondents;
the drainage board shall enter an order directing the respondents toremove the obstruction at their own expense, or directing the countysurveyor to remove the obstruction at the expense of the respondents.
(b) A respondent against whom an order is entered undersubsection (a) is subject to an action under section 22 of this chapterif the respondent fails to pay the amount for which the respondent isresponsible under the order.
As added by P.L.239-1996, SEC.3 and P.L.240-1996, SEC.2.
IC 36-9-27.4-17
Duty of board upon finding of unintentional obstruction
Sec. 17. If the drainage board:
(1) finds for the petitioner under section 14(a) of this chapter;and
(2) does not find under section 15 of this chapter that theobstruction of the drain or a natural surface watercourse wascreated intentionally by any of the respondents;
the drainage board shall enter an order under section 18 or 19 of this
chapter concerning the removal of the obstruction.
As added by P.L.239-1996, SEC.3 and P.L.240-1996, SEC.2.
IC 36-9-27.4-18
Additional duties of board; natural surface watercourses
Sec. 18. (a) If:
(1) a petition filed under this chapter concerns a natural surfacewatercourse; and
(2) the drainage board:
(A) finds for the petitioner under section 14(a) of thischapter; and
(B) does not find under section 15 of this chapter that theobstruction of the natural surface watercourse was createdintentionally by any of the respondents;
the drainage board shall enter an order under subsection (b).
(b) Upon a determination made under subsection (a), the drainageboard shall enter an order:
(1) authorizing the petitioner to remove the obstruction; or
(2) directing the county surveyor to remove the obstruction atthe expense of the petitioner.
(c) The drainage board shall consult with the:
(1) petitioner;
(2) respondents; and
(3) county surveyor;
before deciding whether to enter an order under subsection (b)(1) or(b)(2).
(d) If the drainage board enters an order under subsection (b), theorder may require the petitioner to bear the expenses of removing theobstruction, including the monetary value of the harm andinconvenience that the respondents will incur as a result of theremoval of the obstruction.
As added by P.L.239-1996, SEC.3 and P.L.240-1996, SEC.2.
IC 36-9-27.4-19
Additional duties of board; drains
Sec. 19. (a) If:
(1) a petition filed under this chapter concerns a drain; and
(2) the drainage board:
(A) finds for the petitioner under section 14(a) of thischapter; but
(B) does not find under section 15 of this chapter that theobstruction of the drain was created intentionally by any ofthe respondents;
the drainage board shall enter an order under subsection (b).
(b) Upon a determination made under subsection (a), the drainageboard shall enter an order:
(1) authorizing the petitioner to remove the obstruction;
(2) authorizing the respondents to remove the obstruction;
(3) directing the county surveyor to remove the obstruction; or
(4) directing that the obstruction be removed through the joint
efforts of at least two (2) of the persons referred to in thissubsection.
(c) If an order is issued under subsection (b), the costs ofremoving the obstruction must be borne by the owners of all thetracts of land that are benefited by the drain. The order of the boardmust do the following:
(1) Identify all tracts of land that are benefited by the drain.
(2) Identify the owners of the tracts of land referred to insubdivision (1):
(A) who are known to the drainage board; or
(B) whose identity can be determined through the records ofthe county auditor.
(3) Apportion the costs of removing the obstruction among thetracts of land that are benefited by the drain, assigning to eachtract a certain percentage of the total costs.
(4) Order the owners of each tract of land referred to insubdivision (1) to pay an amount equal to the product of thetotal costs of removing the obstruction multiplied by thepercentage assigned to the tract under subdivision (3).
(d) The percentage of the total costs assigned to a tract undersubsection (c)(3) must correspond to the ratio of the total length ofthe drain to the length of the particular segment of the drain thatbenefits the tract.
As added by P.L.239-1996, SEC.3 and P.L.240-1996, SEC.2.Amended by P.L.276-2001, SEC.19.
IC 36-9-27.4-20
Landowners jointly and severally responsible for costs ofobstruction removal
Sec. 20. (a) All the owners of a tract that is the subject of an orderissued under section 19 of this chapter are jointly and severallyresponsible for the payment of the amount determined under section19(c)(4) of this chapter.
(b) An owner of a tract who pays all of or a portion of the amountmay bring an action to obtain contribution from an owner of the tractwho did not pay an equal or a greater portion of the amount.
(c) An owner of a tract that is the subject of an order issued undersection 19 of this chapter is subject to an action under section 22 ofthis chapter if the owner fails to pay the amount for which the owneris responsible under the order.
As added by P.L.239-1996, SEC.3 and P.L.240-1996, SEC.2.
IC 36-9-27.4-21
Order authorizing advance on general drain improvement fund forpayment of obstruction removal expenses
Sec. 21. In entering an order concerning the removal of anobstruction under this chapter, a drainage board may:
(1) provide for the costs of the removal work to be paid directlyby one (1) or more of the persons subject to the order; or
(2) authorize an advance on the general drain improvement fund
established in the county under IC 36-9-27-73 for the paymentof the costs of the removal work and provide for the amountadvanced to be reimbursed by one (1) or more of the personssubject to the order.
As added by P.L.239-1996, SEC.3 and P.L.240-1996, SEC.2.
IC 36-9-27.4-22
Recovery of unpaid amounts or expenses
Sec. 22. (a) If a person who is required by an order of a drainageboard under this chapter to pay an amount or bear an expense doesnot comply with the requirement, the amount for which the person isresponsible may be recovered by:
(1) the drainage board, as custodian of the general drainimprovement fund, if the amount was advanced from thegeneral drain improvement fund; or
(2) another person subject to the order who has paid the amountand is entitled to reimbursement.
(b) An amount may be recovered from a person under subsection(a) through an action in a court having jurisdiction in the samemanner that a creditor may recover an amount owed under a contract.In an action brought under this subsection, the plaintiff may also beawarded costs and reasonable attorney's fees.
As added by P.L.239-1996, SEC.3 and P.L.240-1996, SEC.2.
IC 36-9-27.4-23
Judicial review
Sec. 23. (a) If the drainage board finds for a petitioner after ahearing held under this chapter, a respondent may file an action inthe circuit or superior court of the county in which the allegedobstruction exists seeking to have the order entered by the drainageboard vacated.
(b) An action filed under subsection (a) must be based on at leastone (1) of the following assertions by the respondent:
(1) The drainage board lacked authority to act under thischapter.
(2) The drainage board erred in making the findings describedin section 14(a) of this chapter.
(3) The respondent should have been awarded compensation forharm and inconvenience, or the amount awarded to therespondent for harm and inconvenience is insufficient.
(4) The drainage board did not follow the procedure required bythis chapter.
As added by P.L.239-1996, SEC.3 and P.L.240-1996, SEC.2.
IC 36-9-27.4-24
Remedies
Sec. 24. (a) In an action filed under section 23 of this chapter, thecourt:
(1) shall enter an order vacating the order of the drainage boarddirecting the county surveyor to remove the obstruction; and (2) may issue an injunction against the removal of theobstruction;
if the court makes a finding under subsection (b).
(b) The court is required or authorized to act under subsection (a)if the court finds that the drainage board:
(1) was clearly in error in making its findings under section14(a) of this chapter with respect to the alleged obstruction; or
(2) exceeded its authority or discretion under the law inauthorizing the removal of the obstruction.
As added by P.L.239-1996, SEC.3 and P.L.240-1996, SEC.2.
IC 36-9-27.4-25
Right of entry onto land
Sec. 25. (a) For the purposes of this chapter:
(1) a county surveyor;
(2) a member of a drainage board; or
(3) an authorized representative of a county surveyor ordrainage board;
has a right of entry over and upon a tract of land containing a drainor natural surface watercourse that is the subject of a petition filedunder this chapter.
(b) The right of entry granted by this section is limited to the landlying within seventy-five (75) feet of the drain or natural surfacewatercourse. The seventy-five (75) feet must be measured at rightangles to:
(1) the center line of any tiled drain; and
(2) the top edge of each bank of an open drain; and
(3) the edge of any natural surface watercourse;
as determined by the county surveyor.
(c) A person exercising a right of entry under this section shall, tothe extent possible, use due care to avoid damage to:
(1) crops, fences, buildings, and other structures located outsidethe right-of-way; and
(2) crops and approved structures located inside theright-of-way.
(d) Before exercising a right of entry under this section, anindividual must give oral or written notice of the entry on the land tothe property owner of record. The notice must state the purpose forthe entry.
(e) A right of entry under this section is not criminal trespassunder IC 35-43-2-2, and an individual exercising a right of entryunder this section may not be arrested or prosecuted for criminaltrespass under IC 35-43-2-2.
As added by P.L.239-1996, SEC.3 and P.L.240-1996, SEC.2.