Stewart L. UDALL, Conrad Wirth, and Sam P. Weems, Defendants.
*813 Carswell & Justice, Charlotte, N. C., for plaintiffs.
William Medford, U. S. Atty., Robert J. Robinson, Asst. U. S. Atty., Asheville, N. C., for defendants.
This action, filed on April 3, 1963, is brought by the plaintiffs against the defendants as another in a series of lawsuits instituted by them and having to do with the same subject matter, but against different defendants.
Following the hearing of any number of motions and incident rulings, it ultimately reached trial and was heard in the Charlotte Division by agreement, during the first week in November past, when a full hearing was had.
The action primarily seeks to have the defendants show cause why a mandatory injunction should not be entered requiring them to remove certain physical obstacles and barriers erected by them across certain access roads along the Blue Ridge Parkway, and to restore said roads to their original condition; and to permanently enjoin and restrain the defendants from interfering with the use of said roads, or any of the accesses thereto, a recovery being sought under Chapter 85, Sec. 1361 of Title 28, U.S.Code, as enacted by the Congress on October 5, 1962. 76 Stat. 744.
From the pleadings and the voluminous records, together with the exhibits offered and evidences heard at the trial, and in keeping with Rule 52 Title 28, U. S.Code, the following facts are found.
The Plaintiff, Switzerland Company is a corporation organized under the laws of North Carolina, and Joseph H. Walker is a resident and citizen of the State of Florida.
The defendant Stewart L. Udall is Secretary of the Interior of the United States of America and is charged with the administration and control of the Department of the Interior, and its various agencies, among which is the National Park Service. Conrad L. Wirth is the Director of the National Park Service, and as such is charged with the responsibility for the maintenance and administration of all National Parks, including Blue Ridge Parkway. Sam P. Weems is Superintendent of the Blue Ridge Parkway and as such is charged with the maintenance, administration and control of said Parkway and the enforcement of the laws and regulations governing its maintenance and use. That all three are officers, agents and employees of the United States of America.
The defendants Udall and Wirth are officially residents of the District of Columbia but actually reside in the State of Maryland. The defendant Weems is a citizen and resides in the State of Virginia.
The Switzerland Company, following its incorporation in 1909, became the owner of approximately 1200 acres of land, as is shown by the conveyance to it by the late Heriot Clarkson, an attorney of Charlotte, North Carolina, who had previously purchased said lands in varying tracts through the years past. He was the majority and controlling stockholder, and its directing head.
The property as such was held for development and sale as a recreational section for summer vacationers and home owners. It lay atop and along the crest of the Blue Ridge Mountains in Mitchell and McDowell Counties. Roads were developed and accesses were made to various spots; some homes were built and generally its position reflected its promoters' ideas. Obviously it was a highly regarded area. Home sites were sought after and through restrictions the purchasers were selected. An observation tower, erected from native stone, *814 had been built and access to it for public use was laid out. Atop this tower a beautiful panoramic view of the valleys lying below was possible and the grandeur of the mountains could be obtained. The tower was given the name of Kilmichael.
Sometime during the early nineteen thirties the Congress of the United States enacted legislation creating the Blue Ridge Parkway through the states of Virginia and North Carolina, and between the Shenandoah and the Great Smoky Mountains National Parks, and authorized the acquisition of a right of way for said Parkway of sufficient width, but not exceeding a maximum of 200 ft., and setting out therein the manner of the acquisition of said right of way, its administration and maintenance and otherwise providing for its construction, the routes to be laid out as nearly as possible so as to generally follow the crest of the Blue Ridge Mountains, through these two states, and being about five hundred miles in length.
Incidentally this legislation brought about the fulfillment of a dream entertained by millions through the years and has created one of the great travel areas in Eastern America.
Simply stated, among other things the law as enacted by the Congress required that the Governing Officials of the two states through which it was to be constructed, were to convey to the United States a title in fee simple to the right of way, free and clear of any incumberances.
When the necessary surveys had been made and the routes selected and accepted, and the notices given, the State of North Carolina undertook through the various laws necessary as enacted by its General Assembly to acquire the needed areas by purchase or condemnation. Failing to secure title by agreement and conveyance, and pursuant to Chapter 2 of the Public Laws of North Carolina, Session 1935, as amended by Chapter 42 of the Public Laws of said state, 1937, and by virtue of Chapter 33 of North Carolina General Statutes entitled "Eminent Domain", the State of North Carolina, through its agency, the North Carolina State Highway and Public Works Commission, as the above statutes required, filed the maps and other evidences showing the right of way in the office of the Register of Deeds for Mitchell County and similarly in the office of the Register of Deeds for McDowell County, on the 28th of April, 1937, indicating that this state agency as of the date of such filing had appropriated for use as a federal parkway, the lands described and set out in the maps filed, thereby condemning 74.47 acres, in fee simple, and approximately 12.12 acres of land, for the purpose of an easement for said Blue Ridge Parkway, together with an additional 1.73 acres known as the "J.W. Cox" land, all of which lands condemned were owned and held by the Switzerland Company.
This project affecting the Switzerland Company and its ownership of said lands as condemned, was designated as Sec. 2-L of the Blue Ridge Parkway, which maps as filed, in the offices of the Register of Deeds for the two counties and used as the medium of condemnation do not include any roads, public or otherwise, as set out thereon.
Thereafter, on March 4, 1938, the State of North Carolina, through its then Governor Clyde R. Hoey, acting for and at the request of its agency, the State Highway and Public Works Commission, executed and delivered to the United States of America, acting on behalf of and at the request of its agency, The National Park Service of the Department of the Interior, a warranty deed in fee simple, wherein among other things conveying to the United States by such deed, the 74.47 acres in fee simple and approximately 12.12 acres which had been taken for the purpose of a scenic easement, including the 1.73 acres of the "J.W. Cox" land, all previously owned by the Switzerland Company. This deed was duly registered.
That subsequently and in the six months period as required by the law, the Switzerland Company filed its petition, having failed to agree with the State *815 of North Carolina as to the value of the land so taken by condemnation, and set out that it had suffered a loss through the value of the land taken and the damage to the remainder of the land by such taking, in the sum of $50,000. An answer was thereupon filed by the defendant, the North Carolina State Highway and Public Works Commission, in which it sets up various defenses as was shown therein.
Various required steps were taken, commissioners were appointed, and a study of the premises made and a report filed by such appraisers. An appeal was thereafter taken to the Findings made and filed and the action was thereupon set down for trial on its merits in the Superior Court of Mitchell County.
The cause was heard at the March 1939 term of the Superior Court of such county, at which hearing I presided, for that at such time I was a Judge of the Superior Court of North Carolina. Now, a quarter of a century later, the cause comes back to me for an additional determination as a District Judge of the United States.
One issue was submitted to the jury, in words as follows: "1. What sum, if any, is petitioner entitled to recover of the defendant for the appropriation of and damage to lands of the petitioner described in the petition, over and above all general and special benefits accruing to petitioner's lands by reason of the construction of the parkway?"
After a trial lasting one week, in which four night sessions became necessary, the jury selected to try the cause and coming as it did from a county other than Mitchell, answered the issue: $25,000.00."
The defendant, the North Carolina State Highway and Public Works Commission, perfected its appeal to the Supreme Court of North Carolina where the trial below was affirmed. Switzerland Co. v. North Carolina State Highway Commission, 216 N.C. 450-462, 5 S.E.2d 327.
At such hearing in the Superior Court Mr. Heriot Clarkson, who had long previous to the time of the trial become a Justice of the Supreme Court of North Carolina, and who was yet majority stockholder and an officer in the Switzerland Company, testified at considerable length, and gave his opinion as to the damage suffered and sustained by the Switzerland Company by the taking of the lands conveyed to the United States. Among other things with respect thereto, he was asked the following question: "Q. Tell the jury whether there is any reservation by the Highway Commission of North Carolina, or any division in it that you ever read which reserved or which required an exit from or entrance to the parkway from one end of the Little Switzerland property to the other? A. No. there is not." This particularly being set out since the case in the Superior Court before me was tried wholly upon the theory of damages for a recovery of the value of the lands taken, with the scenic easement acquired. Additionally as the issue sets forth, a recovery was likewise sought for any damage sustained to the remainder of the tract, the abolishment of roads, etc., over and above all general and special benefits accruing.
The judgment was satisfied in full by the State of North Carolina making payment of the amount awarded by the jury.
The United States was not a party in any wise to that particular lawsuit.
"Gentlemen of the jury, there has been introduced in evidence in this case a deed from the State of North Carolina to the United States Government conveying the premises described therein and in said deed certain reservations were made. I charge you that no evidence has been offered in this case of any conveyance or reconveyance, either to the State of North Carolina or its citizens, *816 of any easements or rights in the property so acquired by any deed or instrument sufficient in law to reinvest in the State or in any of its citizens any rights or easements which were not reserved in the deed," and "I further charge you that under the laws of the United States, the Secretary of the Interior has only a limited right to grant concessions or make leases for a limited time, and that under said law there is no authority to grant a permanent right privilege or easement which could only be authorized by an act of Congress."
This instruction was given. On the appeal to the Supreme Court exception was taken to such preemptory instruction, but in the opinion by Mr. Justice Schenck, it was stated: "These are correct statements of the evidence and of the law, and the exceptions thereto are untenable."
The deed executed and delivered to the United States as aforesaid contained full covenants of warranty, and incidentally the following stipulation: "Be It Clearly Understood, however, that the purpose of this conveyance is to transfer to the Grantee the proprietary estate in the lands described and it is not to be construed as a surrender of State Sovereignty over the area embraced in the description herein set out; expressly reserving the right to maintain existing public roads within or across said area, subject to such change of location as may be mutually agreed to by supplementary contract."
On August 30, 1938 the North Carolina Highway Commission and the United States of America, each acting by and through their respective designated agents, entered into a cooperative agreement or supplementary contract as the deed of conveyance required, wherein the roads which would be annulled were listed and those to be retained and the new ones to be built were specifically spelled out, particularly so as they might effect the parkway and its uses, and to fully conform to the designation and alignment of such parkway. These roads were all constructed and the accesses made and a full compliance had in line with such cooperative agreement, it being executed prior to the trial in the Superior Court, was available at such trial and its contents made known to the jury, through its introduction in evidence. Accordingly all connected with the trial fully knew the exact status of the public roads and of the accesses to the parkway. Kilmichael Tower roadway was ultimately graded and opened with a width of ten feet, and shown, as a private road, as the Department of the Interior's official map of the Blue Ridge Parkway show all access roads claimed by plaintiff as private roads, and accesses to the parkway were made from both the north and south sides thereof.
Following the completion and opening of the Blue Ridge Parkway through the lands of the Switzerland Company and in furtherance of the authority of the Secretary of the Interior to grant limited rights and concessions or to make leases for a limited time, and none other, a special use permit dated October 20, 1948, was executed by the acting Superintendent, Blue Ridge Parkway, and accepted as tendered by the Switzerland Land Company by Reid Queen, Agent. Authority was given under such permit for a term of one year from January 1, 1949, to December 31, 1949, to use and maintain an existing ten foot wide private road from the right of way line to the Kilmichael Tower, and from both sides of the parkway lands, all as is shown by the blueprint attached to said permit, and thereby provide access to Kilmichael Tower. This permit was to be automatically renewed annually for a period not to exceed ten years. This permit expired on December 31, 1958. It would seem likely that prior permits had been entered into on the date of the completion of the parkway for periods as shown and were renewed as this special permit indicates, however none were introduced other than those above. Some several additional use permits were entered into for the purpose of providing water for the adjacent *817 community, sewage disposal facilities, and other factors, which the United States was agreeable to grant for the use and betterment of the lands of petitioner, the Switzerland Company, all signed by Reid Queen, Agent for the Switzerland Land Company, Little Switzerland, North Carolina. It seems that the Parkway service dealt with the Switzerland Company throughout all of its dealings following the completion of the Parkway, as the Switzerland Land Company, since each permit offered into evidence in this hearing was so denominated.
In Defendants' Exhibits 9, 10 and 11, to which reference has been made, it appears that Reid Queen, Agent, executed all of said exhibits which had to do with accepting the leases and permits from the Department of the Interior of the United States, National Park Service. Incidentally, Exhibit 9, signed by Reid Queen, as Agent, on its expiration on December 31, 1958, was on said date renewed for an additional ten year period by Francis O. Clarkson, Jr., President of Switzerland Company. It will be noted that the agent in charge of the Blue Ridge Parkway again used the word "Switzerland Land Company" Little Switzerland, North Carolina, as the official name in said permit. Before signing, it appears that Mr. Clarkson, President, erased the word "land" from the permit.
I find further that defendants' exhibits 6 and 7, being letters written by Francis O. Clarkson, President, Switzerland Company, one dated October 17, 1949 and the other dated April 25, 1950, both addressed to the defendant, Sam P. Weems, state among other things therein "I went over it with our Agent, Mr. Reid Queen" and in the other letter wrote, "yesterday I was at Little Switzerland and went over the matter on the ground with our Agent, Mr. Reid Queen."
It is further found as a fact that Francis O. Clarkson, President, Switzerland Company, in a letter to the defendant Weems, dated October 27, 1949, sends a copy of said letter to "Mr. Reid Queen, Little Switzerland, North Carolina."
I therefore conclude from all the evidence in this case that the said Reid Queen was the Agent of the plaintiff, Switzerland Company, and as such had authority to enter into leases as made and shown for its use and benefit.
When the last special use permit dated October 20, 1948, covering the access roads expired on December 31, 1958, and the Switzerland Company refused thereafter to execute the special use permit tendered it by the government as theretofore done, the two access roads were closed and barricaded at their entrance to and on the Parkway proper, on the 22nd day of April, 1960, all at the direction of the National Park Service of the Department of the Interior.
This continued litigation stems and is centered wholly around the 10 ft. access from the Parkway to Kilmichael Tower.
Since the government's ownership of the lands involved in the right of way of the parkway and the problems herein must of necessity determine such ownership, and rights incident thereto, I have purposely found the above facts in detail.
The plaintiff, Joseph H. Walker, purchased the 25 acres claimed by him from one J. F. Jones in 1960. Jones in turn had purchased the identic land now held by Walker from the Switzerland Company in 1957. This land used the accesses to the Kilmichael Tower for ingress and egress to the parkway. The Switzerland Company owns approximately 80 acres allegedly affected by the Kilmichael Tower roadway access.
Following the closing and barricading of the two accesses to the Kilmichael Tower as set out, plaintiff, Switzerland Company, on April 14, 1961, filed a motion in the cause in the original condemnation proceeding in Mitchell County, which was tried at the March term, 1939, seeking to amend the judgment entered in such action by having it decree that the roads referred to in their complaint in this action were public roads; and served a copy of the motion on the Chairman of the North Carolina State Highway and Public Works Commission. At such time on motion Stewart L. Udall, *818 Secretary of the Interior of the United States was through some means, made an additional party defendant and service was undertaken to be had on him as such Secretary by mailing a copy of such motion and order by Registered Mail to his official place of residence in the District of Columbia. Thereafter Secretary Udall entered a special appearance in such cause and removed the action to the United States District Court for the Western District of North Carolina, Asheville Division, on the grounds of a lack of jurisdiction of his person.
On a hearing before the undersigned, Secretary Udall's motion to dismiss was allowed and the action was thereupon remanded to the Superior Court of Mitchell County.
It would seem that a hearing on such motion to amend the original judgment of 1939 came on before Judge P.C. Froneberger of the Superior Court of North Carolina, and on the 27th of September, 1962, such judgment was amended as is shown by the exhibit attached to the complaint in the action. Obviously the amended judgment is of no validity in so far as the United States is concerned for that it was not a party to such motion and thereupon such is not binding on it or any Department or agency thereof.
Ironically, paragraph 15 of this motion in the cause to amend the 1939 judgment indicates that plaintiff was seeking a relief from the United States as such paragraph clearly shows: "That plaintiff owns approximately 80 acres of valuable land to the north of this obliterated access road, which land is rendered practically valueless due to the action of the United States Government."
On September 14, 1962, Joseph H. Walker, individually, as plaintiff, filed his complaint against the United States of America as defendant in civil action No. 2101 in the Charlotte Division, with jury trial demanded, in which he sought relief pursuant to Title 28 U.S.Code § 1346 (b), alleging that his lands were damaged by the closing of the Kilmichael Tower road and its entrance to the Parkway and asking compensation therefor in the sum of $50,000.
In a similar action the Switzerland Company as plaintiff, instituted its action against the United States of America by the filing of its complaint on September 13, 1962, civil action No. 2102, in which it sought to recover the sum of $125,000, as its claimed damage for the closing of said access rights of way to the Kilmichael Tower road, bottoming its claim under Title 28 U.S.Code, § 1346 (b). Recovery in both of these actions is sought under the "Federal Tort Claims Act."
Answers were duly filed by the United States of America and these actions were pending for trial. However, on November 4, 1963, when this action was heard by the court in Charlotte, both the plaintiff Walker and the Switzerland Company in open court, were permitted under their motions filed, to submit to voluntary dismissals of these two actions without prejudice.
Again an examination of the pleadings filed in these two tort claims actions against the United States somewhat clearly shows the plaintiffs' position in such filing.
This allegation in each complaint, together with the allegations contained in *819 the complaints as a whole seemed clearly to show that the plaintiffs regarded the things done by the agents and employees as being actions of the United States.
On the foregoing findings of fact, which admittedly are too long, but which seemed necessary in order to clearly present the evidence as it was offered at the trial, I conclude as a matter of law that plaintiffs are not entitled to the relief which they seek and that this action against the defendants should be and it is hereby dismissed. I come to that conclusion from a thorough study of the law under which the action is brought.
"§ 1361. Action to compel an officer of the United States to perform his duty.
"The district courts shall have original jurisdiction of any action in the nature of mandamus to compel an officer or employee of the United States or any agency thereof to perform a duty owed to the plaintiff."
Prior to the enactment of this statute the district courts outside the District of Columbia had no authority to grant relief in the nature of a writ of mandamus, i. e., an order requiring a Government official to take affirmative action in the performance of his official duty, as distinguished from an injunction restraining a Government official from taking action determined to be not within his authority. Updegraff v. Talbott, 221 F.2d 342, 346 (C.A.4); Marshall v. Crotty, 185 F.2d 622, 626-627 (C.A. 1); United States v. Schurz, 102 U.S. 378, 393-394, 26 L. Ed. 167.
"This bill will not give access to the Federal Courts to an action which cannot now be brought against a Federal official in the United States District Court for the District of Columbia."
"This legislation does not create new liabilities or new causes of action against the United States Government."
"This bill does not create new liabilities for the Government."
The District Court did not have, prior to the enactment of this statute, and this statute did not give to the District Court, jurisdiction of a suit seeking mandatory or injunctive relief against the United States. This statute by its terms, is directed toward compelling "an official or employee of the United States or any agency thereof, to perform a duty owed to the plaintiff. United States v. Sherwood, 312 U.S. 584, 61 S. Ct. 767, 85 L. Ed. 1058; United States v. United States Fidelity Company, 309 U.S. 506, 60 S. Ct. 653, 84 L. Ed. 894; United States v. Shaw, 309 U.S. 495, 60 S. Ct. 659, 84 L. Ed. 888.
"The Purpose of the amendments is to provide specifically that the jurisdiction conferred on the district courts by the bill is limited to compelling a Government official or agency to perform a duty owed to the plaintiff or to make a decision, but not to direct or influence the exercise of discretion of the officer or agency in the making of the decision. * * * First, it specifically grants jurisdiction to the district courts to issue orders compelling Government officials to perform their duties and to make decisions in matters involving the exercise of discretion, *820 but not to direct or influence the exercise of the officer or agency in the making of the decision."
The actual purpose of this statute was to extend the power of the District Courts outside the District of Columbia to compel official action by mandatory order only in those cases involving nondiscretionary ministerial duties. This was the only power possessed by the District Court for the District of Columbia before the statute was enacted. Decatur v. Paulding, 14 Pet. 497, 514-517, 10 L. Ed. 559; Work v. United States ex rel. Rives, 267 U.S. 175, 177, 45 S. Ct. 252, 69 L. Ed. 561; Wilbur v. United States ex rel. Kadrie, 281 U.S. 206, 218, 50 S. Ct. 320, 74 L. Ed. 809; United States ex rel. Girard Trust Co. v. Helvering, 301 U.S. 540, 543, 57 S. Ct. 855, 81 L. Ed. 1272.
An official action is not ministerial unless "the duty in a particular situation is so plainly prescribed as to be free from doubt and equivalent to a positive command * * *" Wilbur v. United States ex rel. Kadrie, supra; United States ex rel. McLennan v. Wilbur, 283 U.S. 414, 420, 51 S. Ct. 502, 75 L. Ed. 1148; Interstate Commerce Commission v. New York, N. H. & H. R. Co., 287 U.S. 178, 203-204, 53 S. Ct. 106, 77 L. Ed. 248; United States ex rel. Girard Trust Co. v. Helvering, supra.
Where the scope of an official's duties depends upon an interpretation of a statute the duty is not a ministerial one, enforceable by a mandatory order, unless the construction or application of the statute is so plain as to be free from doubt, Work v. United States, ex rel. Rives, supra; Wilbur v. United States ex rel. Kadrie, supra; Interstate Commerce Commission v. New York, N. H. & H. R. Co., supra; United States ex rel. Chicago Great Western Railroad Co. v. Interstate Commerce Commission, 294 U.S. 50, 60, 63, 55 S. Ct. 326, 79 L. Ed. 752.
In this case the duty of these officials depended upon the interpretation of the deed and other documents and the Court Proceedings involved in the acquisition of this property by the United States. The interpretation of this material is certainly not so plain as to be free from doubt.
Therefore since the United States claims title to the access roads, within Section 2-L of the Blue Ridge Parkway, that are set out in this complaint, this action must therefore be considered, and I so determine, an action against the United States. The United States, not having consented to be sued, the action obviously will not lie. Belknap v. Schild, 161 U.S. 10, 16 S. Ct. 443, 40 L. Ed. 599; United States v. Sherwood, 312 U.S. 584, 586, 61 S. Ct. 767, 85 L. Ed. 1058; Maricopa County v. Valley Bank, 318 U.S. 357, 63 S. Ct. 587, 87 L. Ed. 834; Lynch v. United States, 292 U.S. 571, 581-582, 54 S. Ct. 840, 78 L. Ed. 1434; State of Minnesota v. United States, 305 U.S. 382, 387, 59 S. Ct. 292, 83 L. Ed. 235.
"Cutting through the tangle of previous decisions, the Court expressly postulated the rule that the action of a federal officer affecting property claimed by a plaintiff can be made the basis of a suit for specific relief against the officer as an individual only if the officer's action is `not within the officer's statutory powers or, if within those powers, only if the powers, or their exercise in the particular case, are constitutionally void.'"
"* * * that the suit against the petitioning local officials of the Reclamation Bureau is in fact against *821 the United States and they must be dismissed therefrom; that the United States either owned or has acquired or taken the water rights involved in the suit * * *."
1. That this is a suit against the United States and without its consent cannot be maintained by the plaintiffs.
2. The provisions of 28 U.S.Code § 1361, invoked by the plaintiffs as the authority under which their action was instituted, is not applicable in this case.
3. That the access roads leading to Kilmichael Tower from either side of the Blue Ridge Parkway are not public roads.


text:
(j-3) has encroached upon the Government land or public property; or ..."
2. On the undisputed facts of these cases, there is no allegation that the appellants are encroachers themselves, in the sense that they themselves first encroached upon the Government property and they continue to occupy the same. The allegation is that their father/grandfather are encroachers and they are the beneficiaries of the encroachment. According to the State and the contesting respondent, the beneficiary of an encroachment is also an encroacher.
"10. There is nothing in the Act by which the concept of family or joint residence could be imported as far as 1 2013 (2) Mh. L.J. 955 3 the subject of disqualification is concerned. The said provision contemplates encroachment upon the Government land or public property by a person, as in this case, who is a Member of the Panchayat. Therefore, the encroachment must be by the person who is a member and not any third party.
12. The Legislature has taken care and wherever the concept of family or joint residence has to be applied, specific provision in that behalf has been made either substantively or by way of an Explanation.
For illustration, if the disqualification is under section 14(1)(h) for failure to pay any tax or fee due to the panchayat or the Zilla Parishad, then, by virtue of Explanation 2, what the Legislature has done is to provide that failure to pay any tax or fee due to the panchayat or Zilla Parishad by a member of HUF or by person belonging to a group, then, that shall be deemed to disqualify all members of such family or as the case may be of the group or unit.
or having a share or interest in the occasional sale to the panchayat of any article in which he regularly trades and having an occasional share or interest in the letting out or on hire to the panchayat of any article and equally having any share, interest in any lease for a period not exceeding ten years of any immovable property.
Therefore, once the Legislature itself has clarified that an act of the member alone incurs or invites disqualification, then, by interpretative process it will not be possible to include in section 14(1)(j-3), the act of encroachment by members of his family and for that purpose, disqualify the elected representative. It is the act of the person seeking to contest election 4 or functioning as a member which alone will attract the provision in question."
"14. However, when it comes to encroachment upon Government Land or Public Property, the Legislature is aware that ordinarily and normally such act "is gaining upon the rights or possession of another". That may be an individual or a concerted act. Thus, it envisages acting either by himself or herself or jointly with others. Therefore, the extent of participation and the role of a person therein assumes importance and significance. It may amount to entering upon a land and remaining there, occupying and possessing it or construction thereon. Equally, it may mean not just possessing a land but a Structure, Building, House thereon or a part thereof. Hence, which act, when committed, by whom are all relevant matters together with the time factor, namely, prior to or after Petitioner's marriage.
Hence, in its wisdom if the Legislature disqualifies a person or a member only if the act is committed by him, then, it is not for this Court to probe it further. It is for the Legislature to take remedial steps if this is providing an escape route to wrongdoers and lawbreakers. This Court cannot legislate nor can it step in to fill up an alleged lacuna or defect in law. It has been recognized by the Hon'ble Supreme Court that if a matter, provision for which may have been desirable, has not been really provided for by the Legislature, the omission or defect is of the nature which cannot be cured or supplied by a mode of construction which amounts to ironing out the creases.
(See AIR 1989 SC 501, Petron Engineering Construction Co. Pvt. Ltd. vs. Central Board of Direct Taxes). True it is that the character and conduct of the representative of the people should be exemplary and setting a high standard. He will not be a true representative of the people if he indulges in acts which are immoral, illegal and wrongful but the grievance should be raised before some other forum."
5. A few days later, in Kanchan Shivaji Atigre v. Mahadev Baban Ranjagane and others 3 decided on 12.10.2012, the disqualification was also on the ground of encroachment. It was the case of the petitioner that the wording of the provision makes it clear that it is the act of the person who is elected, which alone, is relevant.
The Court held as follows.
"13. ... Therefore, it is the act of the person contesting the poll as a candidate or the act of elected member himself as the case may be, that (sic) would disqualify them. It cannot be that somebody else commits an act of encroachment even if he is a Member of the same family but the consequences are visited on an elected representative or a person desiring to contest the election to Gram Panchayat. Even if such person is a Member of that family by marriage or otherwise, still, it will not be permissible to disqualify him or her as 3 2013(1) Mh. L.J. 455 6 that would create a vacancy in the Gram Panchayat.
It would not be possible to give broad based, wide and comprehensive representation of the public in a unit of local self government. The Gram Panchayat is envisaged to be a unit of local self-government in terms of Part IX of the Constitution of India. Therefore, the provisions with regard to disqualification will have to be construed in a manner so as not to create a vacuum or make it impossible for the villagers to choose their representative and constitute a Gram Panchayat.
That will then create difficulties and obstacles in constituting a Panchayat. If that is equally not intended by the Statute in question, then, by interpretative process, I cannot do so and import or insert something in the provision, which is not there. That would amount to legislation and which act a Court cannot perform or rather not permitted to perform. That is a function which has to be performed by the legislature alone and if there is any difficulty or lacuna in the legislation, it is for the legislature to step in and not for me to re-write the section or provision in question."
"5. We find that there is a definite object in making the said amendment to the provisions of disqualification and the object is that one, who encroaches upon the Government land or the Government property, cannot make any claim to represent the people by becoming an elected, member of the Gram Panchayat. The term person in the said amended provision has to be interpreted to 4 2017 (1) Mh. L.J.102. 7 mean the legal heirs of such person, who has encroached and continues to occupy the Government land or the Government property, his agent, assignee or transferee or as the case may be.
If such an interpretation is not made in the said provision, the result would be absurd in the sense that the Government land would continue to remain encroached and the legal heirs or the assignees or the transferees remaining on such encroached Government land shall claim the right to get elected as a member of democratically elected body. In no case our conscious permits such type of interpretation to defeat the very object of the Bombay Village Panchayats (Amendment) Act, 2006.."
7. The contention put forth by the respondent in the case of Parvatabai @ Shobha d/o Kisan Kande v. Additional Commissioner, Nagpur and others was that she was merely residing in the house of her father and as she was not responsible for said encroachment, she was not liable to be disqualified. The High Court considered the decisions in Ganesh Chavan (supra) and Devidas Surwade (supra) and held as follows: "10. The judgment of the Division Bench in Devidas Surwade (supra) was delivered on 31-7-2012 and prior to the judgments of learned Single Judge in Ganesh Chavan (supra) dated 24-9-2012, Yallubai Kamble (supra) dated 5-10-2012, Kanchan Atigre (supra) dated 12-10-2012.
The judgment of the Division Bench was not brought to the notice of learned Single Judge when said decisions were rendered. Moreover, the judgment of the Division 5 2015 (5) Mh. L.J. 238 8 Bench in Devidas Surwade (supra) on which reliance has been placed by the learned Counsel for the respondents indicates that the Statement of Objects and Reasons have been taken into consideration after which it has been observed that the term "person" in the amended provisions would have to be interpreted to bring legal heirs of a person who has encroached and continues to occupy Government land within its purview. The reasons for interpreting said provisions have thereafter been stated in para 5.
The contention raised on behalf of the petitioner that instead of the judgment of the Division Bench in Devidas Surwade (supra), the view as taken by the learned Single Judge In Yallubai Kamble and Kanchan Atigre (supra) which interprets the expression "person" in a narrow sense should be preferred cannot be accepted. The judgment of the Division Bench binds this Court the same will have to be followed. The reliance sought to be placed on the ratio of judgment of the Special Bench is misplaced.
The decision in Devidas Surwade (supra) being that of the Division Bench and the expression "person" having been duly considered, it is not permissible for this Court to go into the question as to whether the ratio of judgments of learned Single Judge should be followed instead of the view taken by the Division Bench. The ratio of the judgment of the Division Bench will have to be respectfully followed. Hence, for aforesaid reasons, the submissions made on behalf of the petitioner cannot be accepted." The Special Leave Petition in this case was dismissed at the threshold.
8. In Sandip Ganpatrao Bhadade v. Additional Commissioner, Amravati and others 6, the finding of both the authorities below was that the petitioners were 6 2017 (1) Mh.L.J.79. 9 residing in or occupying the property, which is an encroachment over the Government land. The Court analysed the scheme of the Act and held as follows: "13. The very object of introducing the provision of disqualification under Section 14(1)(j-3) of the said Act is to avoid the conflict of interest by prohibiting the persons, who are the encroachers upon the Government land or public property to get elected or continued as a member of the Panchayat, which is a democratically elected body of the villagers.
It is beyond comprehension to assume that a person under statutory obligation or a duty to protect the Government land or public property from encroachment, commits an act of such encroachment. To permit a person, who proposes to become a member or becomes a member of the Panchayat to be the encroacher upon the Government land or public property, would be anathematic, acting in breach of statutory duty, exposing himself to prosecution under sub-sections (1) an (4) of Section 53, resulting ultimately in losing the protection under Section 180 read with Section 184 of the said Act. It is in this context that the text of disqualification under Section 14(1)(j-3) of the said Act is required to be analyzed and interpreted.
16. In view of the aforesaid meaning of the terminologies "to encroach", "encroachment", "encroacher" and "encroached", whoever resides in the property or any portion thereof, which is an encroachment upon the Government land or public property, can be said to have "encroached" upon it and becomes an "encroacher". Whether such an encroachment is jointly with others and/or individually, either at one time or at different times remains hardly of any significance as he becomes liable to be removed and prosecuted under Section 53 of the said Act. Whether a person has become liable to be removed and/or prosecuted under Section 53 of the said Act from the Government land or public property, becomes a real test of attracting disqualification under 10 Section 14(1)(j-3) of the said Act. If the answer is in the affirmative, the disqualification is incurred.
(ii) it would amount to promoting or encouraging the conflicting interest, necessarily resulting in the disqualification under Section 14(1)(j-3) of the said Act."
9. The High Court in, Anita Laxman Junghare v. Additional Commissioner, Amravati Division and others made an attempt to reconcile the different streams of thought.
"6. The views expressed both by the learned Single Judge in the case of Kanchan Atigre (supra) and the 7 Writ Petition No. 1660 of 2017 11 Division Bench in the case of Devidas Surwade (supra) can certainly be reconciled. There is no conflict between the two. For attracting disqualification under section 14(1) (j-3), in a case like this, the crucial question to be answered is: Does the legal representative or member of the original encroacher's family continue to occupy the government land or property. If he does, he attracts the disqualification under Section 14(1)(j-3).
It is not an answer then for such person that the original encroachment was by his predecessor or family member and not by himself. If that encroachment is continued by him, he attracts the disqualification. That was the case in Devidas Surwade. The original encroachment may have been by the petitioner's father, but after the death of his father, he continued to occupy the property and thereby attracted the disqualification of section 14(1) (j-3).
On the other hand, in Kanchan's case, it was the petitioner's father-in-law, who was the encroacher; she had nothing to do with it. It was not the case of the State that she continued to occupy the property either as a legal heir of her father-in-law or as a member of her husband's family. The emphasis is really on the continued encroachment and not so much on the original act of encroachment. Encroachment, after all, is not a one-time act. It is a continuous act. If someone's encroachment is continued by another, that other is equally an encroacher, as much as the original encroacher."
10. The case before us is of a post election scenario, wherein the Collector has taken steps to disqualify an elected member on the petition filed by certain individuals much after the election. It is the contention of the learned Counsel for the respondents that the incumbent being a member of the Panchayat and the Panchayat being the primary authority to go into the question of encroachment and take steps for the eviction of encroachers, the participation of an interested member in the Panchayat would be detrimental to the object of the statute and it would be against the larger public interest.
(c) without written permission given to the owner or occupier of a building by a Panchayat, puts up, so as to protect from an upper storey thereof, any verandah, balcony, room or other structure or thing, in or over any public street or place, or in or over upon any open drains, gutter, sewer or aqueduct in such street or place, or contravenes any conditions, subject to which any permission as aforesaid is given or the provisions of any by-law made in relation to any such projections or cultivates or makes any unauthorised use of any grazing land, not being private property, shall, on conviction, be punished with fine, which may extend to fifty rupees, and with further fine which may extend to five rupees for every day on which such obstruction, deposit, projection, cultivation or unauthorised use continues after the date of first conviction for such offence.
(2). The Panchayat shall have power to remove any such obstruction or encroachment and to remove any crop unauthorisedly cultivated on grazing land or any other land, not being private property, and shall have the like power to remove any unauthorised obstruction or encroachment of the like nature in any open site not being private property, whether such site is vested in the panchayat or not, provided that if the site be vested in Government the permission of the Collector or any officer authorised by him in this behalf shall have been first obtained.
The expense of such removal shall be paid by the person who has caused the said obstruction or encroachment and shall be recoverable in the same manner as an amount claimed on account of any tax recoverable under Chapter IX. It shall be the duty of the Panchayat to remove such obstruction or encroachment immediately after it is noticed or brought to its notice, by following the procedure mentioned above.
[(2A) If any Panchayat fails to take action under sub-section (2), the Collector suo motu or on an application made in this behalf, may take action as [provided in that sub-section, and submit the report thereof to the Commissioner]. The expense of such removal shall be paid by the person who has caused the said obstruction or encroachment or unauthorized cultivation of the crop and shall be recoverable from such person as an arrear of land revenue.]"
11. Thus, under the statutory scheme, an encroacher is liable to be evicted by the Panchayat and if the Panchayat fails, the Collector has to take action. The encroacher is also liable to be prosecuted. Encroachment is certainly to be condemned, the encroacher evicted and punished. Desirably, there should not be a member in the Panchayat with conflicting interest. But once a person is elected by the people, he can be unseated only in the manner provided under law. Even with the best of intention, if there is no statutory expression of the intention, the court cannot supply words for the sake of achieving the alleged intention of the law maker. It is entirely within the realm of the law maker to express clearly what they intend. No doubt, there is a limited extent to which the court can interpret a provision so as to achieve the legislative intent.
That is in a situation where such an interpretation is permissible, otherwise feasible, when it is absolutely necessary, and where the intention is clear but the words used are either inadequate or ambiguous. That is not the situation here. In the Act, wherever the law-makers wanted to specify family, they have done so. As noted by some of the judgments of the High Court, in Explanation 2 for Section 14(1)(h), the failure to pay any tax or fee due to the Panchayat or Zila Parishad by a member of a Hindu Undivided Family (HUF) or by a person belonging to a group has been 15 expressly mentioned as a disqualification on others in the family or group.
It is, therefore, evident that when the intent of the legislature was to disqualify a member for the act of his family, it has specifically done so. The Court, in the process of interpretation, cannot lay down what is desirable in its own opinion, if from the words used, the legislative intention is otherwise discernible.
12. Abhiram Singh v. C.D. Commachen (D) By Lrs. and others 8 is a recent Constitution Bench judgment of this Court dealing with corrupt practices. Appeal on the grounds of religion, race, caste, community, language, etc. of the candidates and the electorate, and canvassing votes accordingly, has been held to be a corrupt practice. The Court, to hold so, adopted a purposive interpretative process declaring that the Representation of the People Act, 1951 should be interpreted in that context to be electorate centric rather than candidate centric.
That is not the situation in the present case. The appellants were elected by the people to the Panchayat. There is no case that they are original encroachers on the public property. And this is not the case where the alleged act of encroachment has 8 (2017) 2 SCC 629 16 influenced the will of the people in which case, going by Abhiram Singh (supra), the court would have been justified in attempting a purposive interpretation to achieve a laudable object.
13. The respondents have placed reliance on Hari Ram v. Jyoti Prasad and another 9 to say that an encroachment is a continuing wrong. While there is no quarrel with the aforesaid position, this case does not further the point made by the respondents. It is a case where there was an allegation of encroachment upon a substantial part of a street by the appellant which was causing inconvenience to the users of the street. Hari Ram (supra) does not relate to interpretation of a statute dealing with election to a public office or disqualification on the ground of encroachment. Furthermore, it does not deal with the question of whether a legal heir can be considered an encroacher. Thus, the reliance on Hari Ram (supra) is misplaced in the light of the present case.
14. As we have already noted above, the duty of the court is not to lay down what is desirable in its own opinion. Its duty is to state what is discernible from the 9 (2011) 2 SCC 682 17 expressions used in the statute. The court can also traverse to an extent to see what is decipherable but not to the extent of laying down something desirable according to the court if the legislative intent is otherwise not discernible. What is desirable is the jurisdiction of the law-maker and only what is discernible is that of the court.
15. From the Statements of Objects and Reasons for the amendment introduced in 2006, it is seen that the purpose was "to disqualify the person who has encroached upon the Government land or public property, from becoming member of the Panchayat or to continue as such". The person, who has encroached upon the Government land or public property, as the law now stands, for the purpose of disqualification, can only be the person, who has actually, for the first time, made the encroachment. However, in view of Section 53(1) of the Act, in case a member has been punished for encroachment, he shall be dismissed. Similarly, a member against whom there is a final order of eviction under Section 53(2) or (2A), shall also not be entitled to continue as a member.
16. In case, the appellants suffer from any of the three situations indicated above, they shall be unseated. The rest is for the State to clarify by way of a proper amendment in case they really and truly want to achieve the laudable object of preventing persons with conflicting interest from becoming or continuing as members of the Panchayat. The extent of conflicting interest is also for the Legislature to specify.
17. The impugned judgments are set aside and the appeals are disposed of as above.
18. There shall be no order as to costs.
Sagar Pandurang Dhundare Vs. Keshav Aaba Patil & Ors.
Mr. Yatin M. Jagtap, Adv.
Mr. Srikant R. Deshmukh, Adv.
Mr. Sagar N. P. Patil, Adv.
Mr. R. C. Sharma, Adv.
The appeals are disposed of. Pending Interlocutory Applications, if any, stand disposed of.

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text:
Neurosis of the nerves supplying certain muscles, resulting from a posture which causes a cigar-maker when at his work to bend with shoulders forward so as to induce "pressure on the brachial plexus," is not a "personal injury" within the meaning of St. 1911, c. 751, Part II, s. 1, for which such employee may be awarded compensation under the workmen's compensation act.
Upon an appeal from a decision of the Industrial Accident Board in a claim under the workmen's compensation act the Superior Court may vacate a decree which was made by that court without notice of a pending petition by the insurer for a rehearing before the Industrial Accident Board.
APPEAL to the Superior Court under St. 1911, c. 751, Part III, s. 11, as amended by St. 1912, c. 571, s. 14, from a decision of the Industrial Accident Board awarding compensation to Frank Maggelet, who was employed as a cigar-maker in the cigar factory of Breslin and Campbell, incorporated, in Boston.
The case was heard by Fox, J., who on November 11, 1916, made a decree awarding the employee the sum of $321.43. On November 14, 1916, the insurer filed a motion to vacate the decree on the ground that before the decree was made the insurer had filed with the Industrial Accident Board a petition for a rehearing and reopening of the case. On November 16, 1917, Fox, J. made an order vacating the decree and filed the following memorandum of decision: "At the hearing of the motion to vacate the decree, the counsel for the claimant admitted that when he presented the decree to the court for allowance he knew that the insurer bad filed with the board a petition for rehearing, and did not inform the court of this fact. The decree is therefore vacated on the ground that it was entered by inadvertence and under misapprehension concerning the state of the record."
On December 16, 1916, the Industrial Accident Board denied the insurer's petition for a rehearing and amended their former decision by striking out the words "and affirm and adopt the findings and decision of the committee of arbitration."
On December 18, 1916, by order of Lawton, J., a decree was entered reciting the amendment of the decision of the Industrial Accident Board and again ordering that the insurer should pay to the employee the sum of $321.43. The insurer appealed.
B. A. Lockhart, for the employee.
RUGG, C. J. This case comes before us on a finding and decision of the Industrial Accident Board with a report of all the material evidence. The finding is that "the employee was totally incapacitated for work by reason of a condition of occupational neurosis which arose out of and in the course of his employment."
It is undisputed that the employee was a cigar-maker by trade and had worked for the subscriber twenty-five years; and in March, 1916, he stopped work and on consulting a. physician was told that he was troubled with "occupational neurosis;" and that during the preceding six months his arm had troubled him. Dr.
of the nerves supplying these muscles. . . . It is very possible that there is a certain amount of pressure on the brachial plexus from the position cigar makers assume in their work; he traces it to the continued use of these muscles. . . . It is not peculiar to the cigar makers' trade."
Plass v. Central New England Railway, 169 App. Div. (N. Y.) 826; Archibald v. Ott, 77 W. Va. 448. No case has gone so far as to hold that a "neurosis of the nerves" supplying certain muscles, resulting from a posture which causes the employee "to bend forward with shoulders forward" so as to induce "pressure on the brachial plexus" is a personal injury.
does not constitute a commonly known and well recognized personal injury consequent upon employment. It is difficult to establish and define a plain line of division between what is personal injury within the act on the one hand and simple disease on the other hand. But personal injury and disease are not synonymous. They are different in meaning. One does not include the other. They are classifications differing from each other in kind, although they may overlap in some instances.
There is not enough in this record to show that the condition of the employee is a necessary result of his work. It arose on all the evidence from a bad posture of the body while at work. But there is nothing to show that this was a necessary incident of the employment. Scarcely anything is more difficult to control or influence than the position of the body of another. Whether one shall be erect or stooping of figure, whether the carriage of the person shall be lithe or stiff, whether the chest shall be narrow or broad and the space for the lungs correspondingly cramped or enlarged, whether breathing shall be deep and full, or short and impaired, depend in large degree upon the habit, temperament and appreciation of the requisites of right living on the part of the individual. Interference on these matters by the employer might be regarded as an unwarranted impairment of personal privilege. There are few employments which, pursued without regard to the laws of health and the requirements of correct method of life, may not invite some form of disease. This record is bare of any evidence to show that it is a reasonably necessary result of the employment that those following it should have neurosis or that the inducing proximate cause of that condition is the employment.
Ohio v. Brown, 92 Ohio St. 309. Miller v. American Steel & Wire Co. 90 Conn. 349. See Liondale Bleach, Dye & Paint Works v. Riker, 56 Vroom, 426. Nevertheless we remain content with our decisions in this particular. But the doctrine has not been established by these decisions that every disease caught by an employee in the course of his employment is a personal injury under the act. See in this Connection Turvey v. Brinton's, Ltd.  1 K. B. 328, 338; Brinton's, Ltd. v. Turvey,  A. C. 230, 238; Eke v. Hart-Dyke,  2 K. B. 677, 682.
It seems clear for these reasons that the present case cannot rightly be termed a personal injury within the meaning of those words in the act.
The case is before us properly. The entry of the first decree was manifestly caused by the failure of the employee to state the case truly and fully to the court, and therefore was entered at least through mistake and accident. It was within the power of the court to correct such an error. Karrick v. Wetmore, 210 Mass. 578. Hathaway v. Congregation Ohab Shalom, 216 Mass. 539. The only decree from which an appeal could be taken properly was the one of December 19, 1916.
It follows that the decree must be reversed and a new decree entered to the effect that the insurer is under no liability.

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If you ship product to a buyer, whether of your own accord or through a consignment deal, you have to know your rights in case the buyer claims the product arrived damaged or otherwise did not conform to the agreement between buyer and seller. There are many factors to consider in this assessment that will vary in every situation, but below are some helpful tips. Also remember that in general it is the buyer’s burden to prove that the product did not conform to the contract.
Was the product inspected within the time required under your contract with the buyer? Although PACA requires a contract between the grower and the receiver (7 C.F.R. § § 46.31(d)(-(e), 46.32(a)), if there is no contract then PACA governs (or international law, if you are a foreign seller). Under both PACA and international law the general guideline is 24 hours after notice of arrival (note that if arrival is by truck, then only 8 hours).
If inspection was not timely, the consequences will be different if you are a foreign seller versus a domestic seller. In domestic sales governed by PACA, if inspection is not timely, then the buyer can still claim damages based on the gap between what the product, had it confirmed to the contract requirements, would have achieved in the market versus what the buyer was actually able to get for the non-conforming product.
In international sales, failure to give timely notice of non-conformity means the buyer loses all right to claim damages. PACA is much more flexible, and a late inspection that can show the product was damaged on arrival could be considered.
Was Inspection Comprehensive And Trustworthy?
Federal inspections are prima facie evidence of the quality and condition of the produce. See 7 U.S.C. § 499n(a); see also Fruit Distributing Corp. v. Gary D. Harney Co., 44 Agric. Dec. 1331 (1985). This means the inspection is presumed to be accurate and the results are treated as fact. As a consequence, the accuracy of a federal inspection is very difficult to challenge, and will usually have more weight than a non-federal inspection. That’s not to say a federal inspection can never be challenged, but as a general rule of thumb it is stronger evidence. A full inspection will similarly supersede a partial or restricted inspection. California Fruit Exchange v. Joseph Rothenberg, 7 Agric. Dec. 986 (1948).
Unless your contract with the buyer says otherwise, you have a right to counter-inspect. Ideally, get a full federal inspection as soon as possible. If the buyer relies on a restricted federal inspection to justify a rejection, the seller may get an unrestricted independent (i.e., non-federal) counter-inspection that may prove that it did comply with the contract. Getting an unrestricted federal inspection gives you the most leverage.
Was the product accepted before inspection?
Did The Grower Perform A Shipping Point Inspection?
This is a grower’s best tool in its defense against improper rejections. As we discussed in our previous article Damaged and Dirty: How to Recover On A Bad Shipment, whether the shipper sent the product in “suitable shipping condition” is the key.
“Suitable shipping condition” means that the produce meets the requirements of the contract at the time, and if the shipment is handled under normal transportation service and conditions, will assure delivery without abnormal deterioration at the contract destination agreed upon between the parties. See Cove Valley Packers, Inc. v. Pilgrim Fruit Co.,297 F. Supp. 200 (D. Mass 1969); 7 C.F.R. 46.43(j).
To avoid any questions in this regard, it is in the best interests of both the shipper and the buyer for the shipper to carefully document the state of the perishables as at the time they are delivered to the carrier.
Any inspection should be done as close to the time of delivery to the carrier as possible. In one case, 27 hours elapsed between the time of the USDA inspection and the time the carrier received the produce. Although the court did not exclude the certificate, the court found that “the length of time between inspection and delivery must be considered in determining the evidentiary weight to be given to the certificate.” Strock & Co., Inc. v. S. Pacific Co., 326 F. Supp. 695 (D. Mass. 1971) (citing Missouri Pacific R.R. Co. v. Elmore and Stahl, 377 U.S. 134 (1964)).
Also document the temperature of the container delivering the perishables to the carrier. This is particularly important with produce that is vulnerable to soft rot decay or other issues relating to temperature. Having temperature recorders at regular intervals in each container will help document any cold chain failures.
In summary – document, document, document!


whether the trial courts conclusion that the Smiths could not recover against Miller on an implied warranty of habitability theory because the Smiths did not rely on Millers skill or expertise is clearly erroneous.
The facts most favorable to the judgment follow. In 1980, Miller filed an application with the Area Plan Commission for the approval of a subdivision located in St. Joseph County. Miller proposed using retention ponds as the mode of draining storm water. After an investigation of Millers application, the Surveyor indicated that an urban drain See footnote was needed. On July 15, 1980, the Area Plan Commission approved the tentative subdivision plan subject to certain recommendations.
The project was dormant until April 28, 1981, when Miller submitted a second and revised application for the same real estate. As part of the application, Miller submitted a soils review report that indicated the possibility of groundwater problems on certain lots. Consequently, the application was referred to the Soil Review Committee of the Area Plan Commission. After a meeting, the Soil Review Committee approved the preliminary subdivision subject to the condition that the ground elevation for lots 66 through 73 be set at 793 feet above sea level. In August 1986, after the subdivisions drainage system was classified as an urban drain, the Area Plan Commission gave its final approval for the subdivision.
At some point, Miller conveyed lot 71 of the subdivision to Mrs. Crachy, the wife of experienced homebuilder, William Crachy. In 1988, Crachy built a house on lot 71. At some point during Crachys ownership, the basement area flooded on one occasion following heavy rains. The drainage basin at the rear of the lot also filled with water, as did the walkout basement leading to a patio area.
In 1991, the Smiths bought the house on lot 71 from Mrs. Crachy. During one of the meetings preceding the sale, the Crachys informed the Smiths of the earlier flood. In June 1993, following extensive rainfall, the Smiths basement flooded. Shortly after the June 1993 flood, the Smiths contacted the Surveyor and requested that the Board authorize an engineering firm to do a study regarding the ground water problem. The resulting study revealed that the retention basins, which were designed to accommodate 101,000 cubic feet of water, were constructed to accommodate only 79,074 cubic feet of water. Additionally, although the plans called for the installation of an 1,800 gallon drywell in each retention basin, none were found. Moreover, the study revealed that the lots located in the southwest part of the subdivision, which included the Smiths home located on lot 71, were in a natural drainage course.
The Smiths filed a complaint against Miller in January 1995 alleging that Miller negligently designed, planned, supervised, constructed or observed the construction of the drainage facilities in the subdivision and that Miller had failed to disclose a latent defect in the drainage facilities thereby breaching the implied warranty of habitability. The complaint was later amended to add the Board and the Surveyor as defendants. In the amended complaint, the Smiths alleged that the Board and the Surveyor negligently supervised, monitored, or observed the construction of the drainage facilities, failed to warn buyers of the lots in the subdivision of the potential water problems, and maintained said drainage facility as a nuisance. Following a bench trial, the trial court entered judgment in favor of the defendants.
Where, as here, a party has requested specific findings of fact and conclusions thereon pursuant to Ind. Trial Rule 52(A), we engage in a two-tiered standard of review. Yates-Cobb v. Hays, 681 N.E.2d 729, 733 (Ind. Ct. App. 1997). We first determine whether the evidence supports the findings. Id. Then we determine whether the findings support the judgment. Id. The trial courts findings and conclusions will not be set aside unless they are clearly erroneous. Id. Findings are clearly erroneous if the record contains no facts or reasonable inferences to support them. Id. In determining whether the findings and judgment are clearly erroneous, we neither reweigh the evidence nor judge the credibility of witnesses. Id.
In this case, the Smiths do not challenge the trial courts findings of fact. [W]here a party challenges only the judgment as contrary to law and does not challenge the special findings as unsupported by the evidence, we do not look to the evidence but only to the findings to determine whether they support the judgment. Boyer v. First Nat. Bank of Kokomo, 476 N.E.2d 895, 897 (Ind. Ct. App. 1985).
. . . describe in a short and plain statement the facts on which the claim is based. The statement must include the circumstances which brought about the loss, the extent of the loss, the time and place the loss occurred, the names of all persons involved if known, the amount of the damages sought, and the residence of the person making the claim at the time of the loss and at the time of filing the notice.
The notice was sent to [the Surveyor], among others, at least according to the heading. Nonetheless, he is never mentioned in the recitation of events as one of the persons involved. It was not until [the Smiths] filed their Third Amended Complaint in early March of 1997 that [the Surveyor] (and the County) were apprised that his own actions were being called into question by Mr. and Mrs. Smith. Such was nearly four years after-the-fact. The notice was insufficient.
Record, pp. 689-690. The Smiths argue that the trial courts conclusion that the notice they sent to the Surveyor was insufficient is clearly erroneous for three reasons: (1) the notice substantially complies with the requirements of the Act; (2) notice to the Surveyor was unnecessary to the extent that their complaint requested equitable relief; and (3) the Surveyor waived, or is estopped from asserting, the inadequacy of the tort claims notice because he failed to obtain a pretrial determination of the sufficiency of the notice. We will address each contention in turn.
The Smiths first argue that the trial courts conclusion that the notice they sent to the Surveyor was insufficient is clearly erroneous because the notice substantially complies with the requirements of the Act. The purpose of the Acts notice provision is to inform state officials with reasonable certainty of the incident and the surrounding circumstances so that the State may investigate, determine its possible liability, and prepare a defense to the claim. Ricketts v. State, 720 N.E.2d 1244, 1246 (Ind. Ct. App. 1999), trans. denied. Because notice requirements such as these are in derogation of common law, they are to be strictly construed against limitations on a claimants right to bring suit. Collier v. Prater, 544 N.E.2d 497, 498 (Ind. 1989). Thus, [s]ubstantial compliance with such notice requirements is sufficient where the purpose of the notice requirement is satisfied. Ricketts, 720 N.E.2d at 1246. Although there may be factual issues to be determined, whether there has been compliance with the Acts notice requirements is a question of law which we review de novo. Budden v. Board of Sch. Commrs, 698 N.E.2d 1157, 1160 (Ind. 1998).
Pursuant to the notice provisions of I.C. 34-4-16.5-7, Indiana Tort Claims Act, please take notice of the tort claims of [the Smiths] . . . .
These tort claims arise from the fact that [the Board] is negligently maintaining and/or continuing and maintaining a nuisance at certain drainage basins and related facilities located in Section I of Sherwood Forest, a residential subdivision in St. Joseph County, Indiana. Specifically, on or about August 7, 1986, [Miller] . . . obtained approval of a plat for Sherwood Forest, Section I, in said residential subdivision, from the St. Joseph County Area Plan Commission and [the Board] . . . .
That in conjunction with the approval of said subdivision, [Miller] submitted a drainage plan . . . which was approved by the appropriate governmental authorities, including [the Board], and which contained specific provisions for the construction of drainage facilities; that said facilities were to have been constructed in accordance with the government-approved plans and specifications for the drainage facility.
The [Miller] and [the Board] negligently designed, planned, supervised, constructed or observed the construction of said drainage facilities . . . in that they failed to construct three (3) level basins with a total retention capacity of one hundred thousand sixty-six (100,066) cubic feet; failed to install two (2) separate dams between the three (3) separate retention areas as provided in the plans and specifications as approved by the governmental authorities, including [the Board]; and failed to install drywells in the bottoms of said drainage basins.
That [Miller] was cautioned . . . that groundwater problems might be encountered in any construction of homes on lots located within the southwest portion of the property, said area including lots numbered 66 through 73 of Section I of said Sherwood Forest Subdivision; that [the Smiths] have reason to believe [the Board] was aware of said warning . . . but, nevertheless, approved the plans submitted by [Miller] for the drainage basins and related facilities.
That the negligence of [Miller] and [the Board] did proximately cause damage to the [Smiths] property located . . . [on] Lot Numbered Seventy-one (71) of Sherwood Forest, Section I.
That as a result of the negligence of [Miller] and [the Board], the [Smiths] property, including the lower living quarters of their residence, were flooded by overflow water and [the Smiths] believe they will continue to be flooded by overflow water from the retainage basins constructed by [Miller] and that both the [Smiths] residence and personal property were damaged thereby; that [the Smiths] have incurred loss of use of their property and other damages in attempting to rectify the problems caused by the negligence of [Miller] and [the Board], as well as the continuance and maintenance of the nuisance by [the Board].
That [the Board] is negligently maintaining and/or continuing and maintaining a nuisance of said property belonging to [the Smiths] as well as adjoining lots and that said nuisance constitutes a public health hazard to not only the Smiths but also to other members of the public.
That [the Board] has failed and refused to cause the nuisance in question to be abated by the correction and reconstruction of the drainage basins and facilities in question by [Miller] despite repeated requests to do so from [the Smiths] and their counsel.
That [the Smiths] hereby claim damages from [the Board] in amounts sufficient to compensate them for their losses plus prejudgment interest, for the costs, including reasonable attorney fees, of any negligence and/or nuisance actions they might file against [the Board], said damages not anticipated to exceed the sum of one hundred thousand dollars ($100,000.00).
That [the Smiths], in addition to seeking damages for said negligence and/or continuing nuisance, demand that [the Board] abate said nuisance and, upon its failure to do so, shall file an appropriate court action to seek abatement of the nuisance, including injunctive relief, and shall further seek to recover reasonable attorney fees, court costs, etc. incurred in the process.
Record, pp. 26-28. The Smiths assert that the above quoted notice was very factually detailed, gave notice of the facts and circumstances surrounding the claim, and gave notice of their intent to assert a claim. We agree, to the extent that this assertion relates to the adequacy of the notice to the Board. However, the notice never mentioned the Surveyor and included no information to put the Surveyor on notice that the Smiths might have a claim against him individually.
The Smiths acknowledge that the body of the tort claims notice does not specifically refer to the Surveyor. Nonetheless, the Smiths contend that the fact that the notice was served on the Surveyor and that the notice set forth very specific facts rendered the notice adequate as to the Surveyor because he was able to investigate and determine his potential liability. In support, the Smiths cite Scott v. Gatson, 492 N.E.2d 337 (Ind. Ct. App. 1986).
In Scott, a city bus rear-ended the plaintiffs car. Id. at 338. Prior to suing both the bus driver and the city, the plaintiff sent a tort claim notice to the city that included the bus drivers name in the caption but did not refer to the driver in the body of the letter. Id. at 341. In light of a challenge by the city that the notice was insufficient because it omitted the name of all persons involved, this court noted that because the caption portion of the plaintiffs notice included the bus driver, the city should have no trouble recognizing the bus driver as one of its own drivers and as the driver referred to in the body of the letter. Id. Therefore, we held that the plaintiff had substantially complied with the notice provisions of the Tort Claims Act. Id.
The Scott case is not controlling here for several reasons. First, the plaintiffs intention to bring a claim against the bus driver as an individual was much clearer in Scott than the Smiths intention to bring a claim against the Surveyor in his individual capacity in this case. The notice in Scott specifically referred to the negligence of the citys driver, who was named and referred to as the driver in the caption portion of the notice. See id. at 339. The notice in this case makes no mention of the Surveyors negligence; it refers only to the Boards negligence. Second, the Scott opinion discusses the adequacy of the tort claim notice in relation to the city, not to the bus driver individually. See id. at 341. There is no question in this case that the Smiths notice was adequate as to the Board; the issue is whether the notice is adequate as to the Surveyor in his individual capacity.
We further note that although the heading of the Smiths notice named the Surveyor, indicating that he had been served with a copy of the notice, the notice also included the county board of commissioners and its attorney. Therefore, the fact that the Surveyor was specifically named and served with a copy of the notice does not lead inescapably to the conclusion that the Surveyor was aware that his own actions were being called into question as the Smiths suggest. Moreover, the fact that the Surveyor serves on the Board as an ex officio, nonvoting member is also insufficient to put the Surveyor on notice that the Smiths intended to pursue a claim against him in his individual capacity. See Ind. Code § 36-9-27-5. Therefore, we agree with the trial court that the Smiths tort claim notice, as it relates to the Surveyor, did not substantially comply with the Indiana Tort Claims Act. See, e.g., Ricketts, 720 N.E.2d at 1246.
The Smiths next argue that notice to the Surveyor was unnecessary to the extent that their complaint requested equitable relief. The Smiths complaint requested both monetary damages and injunctive relief. Because the Tort Claims Act, by its terms, applies only to a claim or suit in tort, it is inapplicable to claims requesting injunctive relief. See I.C. § 34-13-3-1; Board of Trustees v. City of Indianapolis, 498 N.E.2d 1002, 1003 (Ind. Ct. App. 1986), rehg denied, rehg denied. Therefore, the Smiths conclude that even if the notice they sent to the Surveyor does not substantially comply with the statute, such compliance is not necessary because their claim for injunctive relief is not subject to the requirements of the Act.
In his answer to the Smiths complaint, the Surveyor raised the notice requirement as an affirmative defense. Additionally, in a pre-trial pleading entitled County Surveyor, John R. McNamaras Contentions, the Surveyor asserted: The [Smiths] complaint is barred for failing to file a timely and proper Notice of Claim against me. Record, pp. 284-285. The Smiths, however, never asserted during the trial or in their brief to the trial court that they were not required to give notice to the Surveyor due to the nature of relief sought. With respect to the notice requirement, the Smiths argued only that their notice was in substantial compliance with the Act. It is well settled that a party may not raise an issue on appeal that was not presented to the trial court. Mitchell v. Stevenson, 677 N.E.2d 551, 558 (Ind. Ct. App. 1997), trans. denied. Because the Smiths never presented this issue to the trial court, it is waived for appellate review. See id.
In an attempt to avoid waiver of this issue, the Smiths argue that because the Surveyor did not seek a pretrial determination of the adequacy of the tort claims notice, there was no appropriate time for them to raise the issue. The Smiths further argue that it was not until the trial court entered its findings, conclusions, and judgment that the possibility that the trial court would err by imposing the obligations of the Act on their claim for injunctive relief arose. Therefore, the Smiths conclude that their first available opportunity to address this specific issue is in this appeal. We find this argument unavailing. The Smiths were on notice that the issue of whether their claim against the Surveyor was barred for failing to comply with the notice provisions of the tort claims statute was before the trial court. However, the Smiths never argued to the trial court that, to the extent that their complaint requested equitable relief, they were not required to give notice to the Surveyor. Instead, they chose only to argue that that their notice was in substantial compliance with the Act. Because they knew that this issue was before the trial court but failed to argue it, the Smiths have waived this issue. See, e.g., Mitchell, 677 N.E.2d at 558.
The Smiths final argument with respect to this issue is that the Surveyor waived, or is estopped from asserting, the inadequacy of the tort claims notice because he failed to obtain a pretrial determination of the sufficiency of the notice. In support, the Smiths cite to case law that states that the question of whether the tort claims notice complies with the Act is a question of law that the trial court should determine prior to trial. See, e.g., City of Indianapolis v. Satz, 268 Ind. 581, 584, 377 N.E.2d 623, 625 (Ind. 1978); Thompson v. City of Aurora, 263 Ind. 187, 195, 325 N.E.2d 839, 843 (Ind. 1975).
The cases cited by the Smiths, however, all involve jury trials. Because the sufficiency of the notice is not a question of fact for the jury, such issue should be resolved by the trial court before the case is submitted to the jury. See Satz, 268 Ind. at 584, 325 N.E.2d at 843 (holding that evidence of compliance with the Tort Claims Act was improperly submitted to the jury). The instant case, however, was tried to the bench, not the jury, and the same reasoning that guided those cases is inapplicable here. In the context of a bench trial, as in the present case, it is not error for the trial court to make a judicial determination regarding the sufficiency of the notice along with the other issues that must be determined. See, e.g., Thompson, 263 Ind. at 195, 325 N.E.2d at 843 (noting that the collateral issue of notice was one that may be speedily resolved before trial) (emphasis added).
The Smiths argue that because the parties did not waive the right to a trial by jury until after the court-imposed cutoff date for dispositive motions, the distinction between bench and jury trials is irrelevant for purposes of their waiver argument. Consequently, the Smiths conclude that because the Surveyor did not raise the sufficiency of the notice prior to the court-imposed cutoff date for dispositive motions, when the case was still scheduled for a jury trial, the Surveyor waived any argument that the tort claims notice was insufficient.
Other than citing cases that stand for the proposition that the issue of the sufficiency of the notice is a question of law that the trial court should determine prior to trial, the Smiths do not cite any authority, nor do we find any, that supports their argument that the Surveyors failure to obtain a pretrial determination of the issue results in waiver. We further note that there is no dispute that the Surveyor raised said issue as an affirmative defense in his answer. Therefore, the Smiths were aware that the sufficiency of the notice was going to be an issue in the case. Despite that knowledge, the Smiths never objected to proceeding to trial without a pretrial determination of the issue. An appellant cannot sit idly by without objecting, await the outcome of trial, and thereafter raise an issue for the first time on appeal. Cheek v. State, 567 N.E.2d 1192, 1195 (Ind. Ct. App. 1991). Consequently, the Smiths argument on this point is without merit.
(a) The county surveyor shall submit to the board a written report setting forth his classification of regulated drains in order of priority for action by the board. This report may be made from time to time during the surveyors process of classification.
Given the statutory scheme establishing the duty of the Surveyor or vis a vis the duty of the Drainage Board, the court is unable to conclude that the Boards acts or omissions regarding the Sherwood Forest drainage systems created any cause of action by [the Smiths].
The Smiths do not dispute that it is the Surveyor, not the Board, that has the statutory responsibility for supervising all construction, reconstruction, and maintenance work with respect to the drain at issue. However, because of the Surveyors status as an ex officio, nonvoting member of the Board, the Smiths assert that when the Surveyor exercised his powers and duties in matters relating to the drain at issue, he did so as a member of the Board. See Ind. Code § 36-9-27-5(a). Consequently, the Smiths conclude that the Surveyors acts and omissions are attributable to the Board and, therefore, the Board is responsible for the alleged negligence of the Surveyor in supervising the construction of the drainage facilities.
The crux of the Smiths argument, although not using the term agent, is that the Surveyor is an agent of the Board. In order for the Surveyor to be considered an agent of the Board, it must be shown that he acted on behalf of the Board, with the Boards consent, and subject to the Boards control. See Hires Parts Serv., Inc., v. Oil Supply Co., 726 N.E.2d 246, 248 (Ind. 2000).
Pursuant to the statutes on drainage law, the Surveyor is an ex officio member of the Board. See I.C. § 36-9-27-5(a). An ex officio member is one that is a member by virtue of his title to a particular office, without the necessity of further warrant or appointment. See Blacks Law Dictionary 575 (6th ed. 1990); Victory Comm. v. Genesis Convention Center, 597 N.E.2d 361, 363 n.1 (Ind. Ct. App. 1992), rehg denied. Thus, the Surveyor is a member of the Board by virtue of his position as the county surveyor. However, there is nothing in the statutes that give agent status to the Surveyor as an ex officio board member. In fact, the statute gives different powers and duties to the Surveyor and the Board, and does not provide for the Board to have any oversight or control over the Surveyor in the completion of his statutory duties. See, e.g., Ind. Code §§ 36-9-27-29, 36-9-27-34(a), 36-9-27-35. Moreover, the Board is not required to adopt the recommendations of the Surveyor: The [B]oard may adopt the classifications and order of work priority as made by the county surveyor, or may modify them. I.C. § 36-9-27-35(b). Thus, the Surveyor does not act on behalf of the Board when he performs his statutory duties nor is he subject to the Boards control in the performance of those duties. Therefore, the Surveyor is not an agent of the Board and the Board cannot be held responsible for the alleged negligence of the Surveyor. See, e.g., Hires, 726 N.E.2d at 248. Consequently, we hold that the trial courts conclusion that the Boards acts or omissions did not create any cause of action in favor of the Smiths is not clearly erroneous. See, e.g., Yates-Cobb, 681 N.E.2d at 733.
The final issue is whether the trial courts conclusion that the Smiths could not recover against Miller on an implied warranty of habitability theory because the Smiths did not rely on Millers skill or expertise is clearly erroneous. A warranty of habitability, which is implied rather than express, warrants that the home will be free from defects that substantially impair the use and enjoyment of the home. R.N. Thompson & Assocs., Inc. v. Wickes Lumber Co., 687 N.E.2d 617, 620 (Ind. Ct. App. 1997), trans. denied. In the case of a second or subsequent purchaser, the implied warranty of habitability protects the subsequent purchaser from latent defects that are not discoverable upon the purchasers reasonable inspection and which manifest themselves after the purchase. Barnes v. Mac Brown & Co., Inc., 264 Ind. 227, 229, 342 N.E.2d 619, 621 (1976).
. . . Miller is not the builder of the Smiths home. It was a vendor in the chain of title, having sold the lot to Lois Crachy before the construction of the dwelling itself was even begun. Mrs. Crachy later conveyed the parcel to Mr. and Mrs. Smith after the home was built. Miller was the developer of the Sherwood Forest subdivision, however. That was never disputed. In light of that fact, the Jordan v. Talaga case, 532 N.E.2d 1174, cited or referred to by all the parties, does appear to be the authority upon which any judgment against Miller must lie. . . .
In this case Miller Builders improved real estate and sold it to Mrs. Crachy for a particular purpose, namely the construction of a home. Miller had reason to know that prospective purchasers of lots in Sherwood Forest would rely on its skill and foresight in the construction of facilities that would prevent flooding of peoples homes. In fact, Miller constructed the drainage basins with 21,926 cubic feet less capacity than the plans called for, a significant fact in this especially vulnerable area with its high water table.
Q. What efforts did you make on your own to determine how high the water table was out there before you purchased it? What did you do about that?
I observed it in the retention pond.
So you knew right from the start before you bought this place it was a high water table; is that true?
Yes. And I asked if it was a potential problem, and I was assured that it was not.
You asked the builder. And that was the only person you asked?
The greater weight of the evidence does not support the premise that Mr. and Mrs. Smith relied on Miller Builders skills or expertise in this regard.
The Smiths argue that reliance is not an element of the implied warranty of habitability and that the trial court therefore erred in imposing a burden upon them to rely on answers to specific inquiries to Miller, a party with whom they had no direct contact or privity of contract. Miller, on the other hand, argues that reliance is an essential element of the implied warranty of habitability and that because the Smiths knew about prior flooding problems and sought to have their concerns addressed by the builder rather than Miller, the trial court was correct in entering judgment in Millers favor because the Smiths did not rely upon Millers skill or expertise when making their decision to purchase the home.
Because the trial court relied upon Jordan in reaching its conclusion on this issue, an examination of that case is warranted. Jordan v. Talaga, 532 N.E.2d 1174, 1178 (Ind. Ct. App. 1989), rehg denied, trans. denied. Shortly after moving into their home, the homeowners in Jordan experienced flooding in their backyard. Id. After several more flooding incidents, which eventually involved the home itself and not just the land, the homeowners brought suit against the subdivision developers (who did not build the home), alleging breach of implied warranty of habitability. Id. at 1177, 1179. The question addressed by this court on appeal was [w]hether a professional developer who improves land for the express purpose of residential homebuilding with knowledge but without disclosure of a latent defect in the real estate that renders the land unsuitable for the purpose of residential homebuilding breaches an implied warranty of habitability. Id. at 1182. Because there was very little authority from our state to provide direction in deciding this question, we turned to decisions from the courts of other states. Id. at 1182-1185. In doing so, we stated that [t]he decisions from two other states are worthy of note because they hold the implied warranty of habitability applies to the sale of land from a developer. Id. at 1185. Those two cases were Hinson and Rusch. Hinson v. Jefferson, 287 N.C. 422, 215 S.E.2d 102 (1975); Rusch v. Lincoln-Devore Testing Lab., Inc., 698 P.2d 832 (Colo. Ct. App. 1984). We then discussed both cases and quoted the holding from Rusch. Jordan, 532 N.E.2d at 1185.
It was from this quotation of Rusch that the trial court concluded that the Smiths had to prove that they did so rely on Millers skill and expertise. However, we did not adopt the holding of Rusch as stated by the trial court. Instead, we found the decision in Rusch to be worthy of note. Id. Our discussion and quotation of Rusch in the Jordan case was designed to illustrate that other jurisdictions had reached the same conclusion under similar facts; namely, that the subdivision developers were liable to the homeowners for breach of the implied warranty of habitability. In reaching this same conclusion, we stated that [t]he facts and circumstances of the present case are particularly appropriate for the imposition of an implied warranty of habitability. Id. We then noted that the developers, who were professionals in the real estate business with knowledge of the water channel problem that they did not disclose, did more than sell raw land: they put in sewers and streets, and rough graded the lots for the express purpose of facilitating the building of homes. Id. Our holding was further guided by our concern that homeowners would be left without a remedy for latent defects in real estate that unscrupulous developers failed to disclose. Id. at 1186. Thus, the trial courts conclusion that the Smiths had to prove that they relied on Millers skill and expertise is not supported by our holding in Jordan.
Having determined that proof of reliance on the subdivision developer is not mandated by our holding in Jordan, we next examine whether this reliance requirement is supported by other case law. Prior to 1976, a warranty of habitability was implied only between the builder and the initial purchaser. See Theis v. Heuer, 264 Ind. 1, 12, 280 N.E.2d 300, 306 (1972) (holding that the rule of caveat emptor would no longer be applied with respect to the purchase of a new residence from the builder-vendor). Then, in Barnes, our supreme court extended the implied warranty of habitability to second or subsequent purchasers in the case of latent defects that are not discoverable upon the purchasers reasonable inspection and which manifest themselves after the purchase. Barnes, 264 Ind. at 229, 342 N.E.2d at 621. However, Barnes and its progeny do not require the second or subsequent purchaser to show that they relied on the builders skill or expertise. See, e.g., Wagner Constr. Co., Inc. v. Noonan, 403 N.E.2d 1144, 1148 (Ind. Ct. App. 1980). Indeed, such reliance would be unlikely and hard to prove given the lack of privity between the parties. Therefore, we hold that the trial courts conclusion that the Smiths could not recover against Miller on an implied warranty of habitability theory because the Smiths did not rely on Millers skill or expertise is clearly erroneous. See, e.g., Yates-Cobb, 681 N.E.2d at 733. However, because the trial court did not make any conclusions, apart from the lack of reliance, about whether the warranty had been breached, we remand for a determination of that issue.
For the foregoing reasons, the judgment of the trial court is affirmed in part, reversed in part, and remanded.
Footnote: An urban drain establishes a specific area to be assessed for the maintenance of drainage swales and retention and detention ponds that are put into a geographic area. Record, p. 837.
Footnote: The parties do not dispute that the Surveyor is covered by the Acts notice provisions. See, e.g., Ind. Code § 34-13-3-22.
Footnote: In their complaint, the Smiths also alleged that the Board failed to warn buyers of the lots in the subdivision of the potential water problems and maintained the drainage facility as a nuisance. The trial courts conclusions do not specifically address these allegations. However, as the Smiths appeal focuses solely on the issue of the Surveyors status as an agent of the Board, that is all we focus on as well.


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