DRAINAGE BOARD PROCEDURES FOR REMOVAL OF OBSTRUCTIONS

IN MUTUAL DRAINS AND NATURAL SURFACE WATERCOURSES

 

I.C. 36-9-27.4-1 through 36-9-27.4-25

 

 

I.          PETITION TO DRAINAGE BOARD

 

            A person who owns a tract of land may seek the removal of an obstruction by filing a petition with the Drainage Board asking the Board to remove, or authorize or order the removal of, the obstruction from a drain or natural watercourse. The petitioner must request the owner of the land on which the obstruction is located to remove the obstruction prior to filing a petition with the Board. A copy of a letter from the Petitioner to the obstructing landowner must be submitted to the Board when filing a Petition under this statute. (It is recommended, but not required that the letter be sent by Certified Mail with Return Receipt Requested.)

 

II.         CONTENTS OF PETITION

 

            The petition must include the following:

 

            (1)        a general description of the tract of land owned by the petitioner;

            (2)        a general explanation of the need for the removal of the obstruction;

            (3)        a general description of the site of the obstruction.

 

Pursuant to the statute, the Board has passed an Order requiring the payment of a $100 filing fee as a condition of filing a petition.

 

III.       INVESTIGATION BY COUNTY SURVEYOR AND HEARING

 

            After a petition is filed, the County Surveyor shall promptly investigate whether the obstruction exists. If the County Surveyor finds an existing obstruction in a drain or natural watercourse in the location alleged in the Petition, the Surveyor shall, in writing, report the existence of the obstruction to the Drainage Board. The Drainage Board shall set a date for hearing on the petition and serve notice of a hearing on each owner of the land on which the obstruction exists. The hearing must be held at least thirty (30) days but not less than ninety (90) days after the date of the filing of the petition. Notice must be served in accordance with Indiana Rules of Trial Procedure. The Board may postpone and reschedule the hearing if it appears that a respondent has not been served with notice or in the interest of fairness otherwise compels a postponement.

 

IV.        DETERMINATION BY DRAINAGE BOARD

 

            If the Drainage Board finds that an alleged obstruction exists and the removal of the obstruction will promote better drainage of the petitioner’s land and not cause unreasonable damage to the land of the respondents, it shall find for the petitioner.

 

            If the Drainage Board is unable to determine that an obstruction exists and unable to determine whether the removal of the obstruction will promote better drainage and not cause unreasonable damage to the respondent’s land, the Drainage Board must deny the petition.

 

V.         INTENTIONAL CONDUCT BY RESPONDENT

 

            If the Board finds for the petitioner, the Board shall determine, based upon a preponderance of the evidence, whether the obstruction was created intentionally by any of the respondents. If the Board finds that the obstruction was created intentionally, the Drainage Board shall enter an order directing the respondent to remove the obstruction at his own expense, or direct the County Surveyor to remove the obstruction at the expense of the respondent. If the Board does not find that the obstruction was created intentionally by any of the respondents, the Drainage Board shall enter an order pursuant to I.C. 36-9-27.4-17 or I.C. 36-9-27.4-18 for removal of the obstruction.

 

VI.        ORDER TO REMOVE OBSTRUCTION AT PETITIONER’S EXPENSE

 

            If the petition concerns a natural watercourse and the Board finds for the petitioner, but does not find that the obstruction was created intentionally, the Board shall enter an order authorizing the petitioner to remove the obstruction or directing the County Surveyor to remove the obstruction at the expense of the petitioner. The Drainage Board shall consult with the petitioner, respondents, and County Surveyor before deciding to enter an order on the removal of the obstruction.

 

VII.      ORDER TO REMOVE OBSTRUCTION AT EXPENSE OF OWNERS OF BENEFITED TRACTS

 

            If a petition is filed that concerns a drain and the Board finds for the petitioner but does not find that the obstruction was created intentionally, the Drainage Board shall enter an order authorizing the petitioner to remove the obstruction; authorizing the respondents to remove the obstruction; directing the County Surveyor to remove the obstruction; or directing the obstruction to be removed through the joint efforts of at least two (2) of the persons referred to in this subsection.

 

            If an order is issued, the cost of removing the obstruction must be borne by the owners of the tracts of land that are benefited by the drain. The order of the Board must identify all tracts of land that are benefited by the drain; and identify the owners of the tracts of land who are known to the Drainage Board or whose identity can be determined through the records of a county recorder. The cost of removing the obstruction shall be assigned to each tract of land by a certain percentage of the total cost.

 

VIII.     COSTS

 

            The Drainage Board may provide for the cost of the removal work to be paid directly by one or more of the persons subject to the order or authorize an advance on the general drain improvement fund.

 

IX.        VACATION OF ORDER OF DRAINAGE BOARD

 

            If the Drainage Board finds for a petitioner after a hearing is held, the respondent may file an action in the circuit or superior court seeking to have the order vacated.

 

X.         RIGHT OF ENTRY

 

            The County Surveyor, members of the Drainage Board, or an authorized representative has a right of entry over and upon a tract of land containing a drain or natural surface watercourse that is the subject of a petition filed under this chapter.

 

XI.        DEFINITIONS

 

            "Drain" -- Refers to a mutual drain as defined in I.C. 36-9-27-2. "Mutual Drain" is a drain that is located on two or more tracts of land that are under different ownership; was established by the mutual consent of all the owners; and was not established under or made subject to any drainage statute.

 

            "Natural Surface Watercourse" -- An area of the surface of the ground over which water from falling rain or melting snow occasionally and temporarily flows in a definable direction.

 

            "Obstruction" -- A condition that exists within or near a drain; and prevents or significantly impedes the flow of water through the drain. The term includes the following:

                       

                        (1)        The presence of:

 

                                    (a)        One 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 through the drain.

 

                        (2)        Obstructions that:

 

                                    (a)        Are created intentionally; and

                                    (b)        Occur naturally or are created unintentionally.

 

 

----------------------------------------------------------------------------------------------

If additional copies are needed they may be obtained at:

 

www.VanderburghSurveyor.com

 

Located under Obstructions on the Duties page.

 

(http://www.vanderburghsurveyor.com/duties.html#Obstructions)

 

----------------------------------------------------------------------------------------------

Bill Jeffers, Vanderburgh County Surveyor

 

 

Vanderburgh County Surveyor’s Office

Room 325 Civic Center Complex – 1 NW ML King Jr. Blvd.

Evansville, IN 47708-1833

Phone: 812-435-5210

FAX: 812-435-5023