By Jeryl L. Olson

While many reported wetlands cases address the improper taking of wetlands, the elimination of wetlands, or the negative impact of development and industry on wetlands, there is a new twist on that theme in an Indiana case where the creation of wetlands was found to have a negative impact on industry. In the case of B&B v. Lake Erie Land Co. (Ind. Ct. App., No. 45X104-1002-PL-183, February 28, 2011), an appellate court determined that a party whose property is adversely affected by the creation of a wetlands bank on adjacent property may be entitled to damages arising from the creation of the adjacent wetlands. The case arose when B&B, a concrete recycler, was ordered by the U.S. Army Corp of Engineers to cease and desist its concrete crushing operation because they were partially in wetlands. The wetlands had not been present at the time the crushing operation began in 2001, but had developed over time on B&B’s property; the wetlands emerged after the adjacent property owner, Lake Erie Land Company (“LEL”) flooded its property to create a wetlands bank. The wetlands were created by removing drain tiles and plugging drains to allow groundwater to create wetlands.

B&B sued LEL for damages arising from trespass, nuisance, and negligence with respect to the wetland encroachment on B&B’s property. The defendants, LEL tried to use the “common enemy” doctrine an affirmative defense which allows a landowner to protect itself from surface water encroachment, however the Court determined that the common enemy doctrine does not apply to groundwater, leading to a finding that where LEL created wetlands from groundwater on its property in order to create a wetlands mitigation bank, and where such action created unwanted wetlands on a neighbor’s property, the neighbor had suffered a trespass that could result in the recovery of damages.