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APRIL 19, 2004 TAPE #008

The White County Drainage Board convened at 10:45 A.M., EST in the Commissioners’ Room of the White County Building, Monticello, Indiana with Board Members Ronald A. Schmierer, John C. Heimlich and O. D. “Bud” Ferguson, Attorney George W. Loy, Surveyor Dennis W. Sterrett and Secretary Romana Kiser in attendance.

Also attending was Charles Mellon.

First on the agenda was opening sealed bids on the Yount Drain maintenance project in Cass Township. This petition was presented by Bob Hunt. This project consists of dredging and clearing brush on approximately 1,600 lineal feet of open drain. Surveyor Sterrett opened the sealed quotes. They were as follows: Blackman Excavating for $2,850.00, County Line Tiling/Excavating $2,100.00, Weaver-Fox Bros. Excavating $2,000.00, and Howe Excavating $2,950.00. Attorney Loy will review the quotes.

Chairman Schmierer stated that the Board received a Petition For The Removal Of An Obstruction To A Natural Surface Watercourse Pursuant To Indiana Code 36-9-27.4 Et Seq., filed by Attorney Lee Griffith on behalf of the Petitioners, Tabor and Betty Brooks versus Respondents, Paris and Maryanne Eldridge.

Chairman Schmierer and Surveyor Sterrett visited the site. Chairman Schmierer explained, “The guy (Eldridge) has flower beds with tile running through them, the water runs onto his driveway and then runs across onto Mr. Brooks. The problem is Mr. Brooks had a swale across his back yard for the water to run down across the next backyard. All that water down there drains to the South along SR 43. When he put his new septic system in, he filled it in with dirt and his septic system is probably two foot higher. You can see behind the house (looking at photos) where this water comes across here, here’s the outlets, they come across there. Anyway the septic system he put in is right here behind his garage. They mounded the dirt up. There was a swale that ran across there and there is still a swale that comes across here (indicated on map), but he mounded the dirt up so the water is running back up to his house. He needs to put a swale back in, that’s what we told him when we were down there.”

Charlie Mellon asked if it was an above ground septic tank. Chairman Schmierer said, “No, but when they put the dirt back in they didn’t level it down and keep the swale for the water to run off. It’s mounded up. Those tiles can’t be very long, maybe 3 or 4 feet long just draining the flower beds. Then the water runs on the driveway and then it runs across on Tabor Brooks, but he’s put a septic tank in that’s above and he needs to put a swale in to go on down and run on across on down.” Surveyor Sterrett said, “In fact he put two septic things in, he even admitted that the reason the ground was higher is because they put the dirt there.”

Chairman Schmierer said, “So I suppose we need to put an opinion on that, don’t we?” Board Member Heimlich said, “Don’t you have to have the Hearing first?” Secretary Kiser stated that the Code says that we can have a Hearing on it and it is to be at least 30 days after the petition is filed, but less than 90 days. Board Member Heimlich said we have had some threaten to do this, but we have never had them actually go through with it.

Surveyor Sterrett stated, “I don’t know how Mr. Brooks can file for an ‘obstruction’ because his ground does not drain toward Eldridge’s ground. So how can Eldridge be blocking his drainage? It all goes south.” Chairman Schmierer said it would have to run uphill if it is going that way. Surveyor Sterrett said, “Even in this suit it says it goes south.”

Chairman Schmierer asked Surveyor Sterrett if there was anything else to discuss while waiting for Attorney Loy. Surveyor Sterrett said, “We have that bill from Todd (Engineer Frauhiger of CTE Engineers) that you have already looked at.” Chairman Schmierer stated, “He didn’t come up here for this (bill is for a meeting). He came up here for the Turbin Addition (drainage approval) and he got paid for that didn’t he?” Surveyor Sterrett said, “It was the second time he looked at it. We sent it back to the surveyor and the surveyor changed the contours. Then Todd went back and looked at it again. They submitted $250.00.” Chairman Schmierer said, “And he got paid out of that, or he will, or if he needs to charge them (more) he can. He was here at the meeting and I know if you look at the tape we weren’t what, twenty minutes with discussing the Brechbiel Drain. He has charged us $620.00 for four hours total, driving up and driving back when he was already here for the meeting for this other thing. As far as I’m concerned we’re not going to pay him $620.00 for……….” Surveyor Sterrett said, “We discussed the Brechbiel and I think he was in on the TP&W discussion.” Chairman Schmierer said, “But why would we pay him for four hours when our meeting didn’t last a half hour. Send this back to him and tell him to call me.” Board Member Heimlich said the four hours would have to be the time for driving up and driving home, then plus the time for the meeting. Surveyor Sterrett said, “And he went and looked at that (Turbin’s) that morning.” Secretary Kiser said yes he went up there before the meeting. Chairman Schmierer and Board Member Heimlich said that is different, that’s not this. Chairman Schmierer said, “Just have him contact me. He still needs to go out and talk to Jordan’s. As far as I’m concerned that bill is between him and Jordan’s not between the County and Jordan’s.”

Board Member Ferguson asked if we have heard anything about Hubbard’s bill. Surveyor Sterrett said he and Attorney Loy have not gotten together to write the letter.

Surveyor Sterrett brought the Board’s attention to a letter from David Stimmel. It was concerning the Big Monon Ditch project. Mr. Stimmel is concerned about environmental issues and installing silt traps. Surveyor Sterrett said he thought they were putting in a silt trap. Board Member Heimlich said that they are, but he didn’t know if Mr. Stimmel was aware of that or not. Chairman Schmierer asked if he is on that Board. Board Member Heimlich said, “I would guess, I think he is on Pheasants Forever board or something like that. This looks like it is a form letter that they have members send out.” Chairman Schmierer asked if the project was still at a standstill. Board Member Heimlich said they still haven’t gotten the permits yet. He said that IDEM is going to have a Hearing soon. Secretary Kiser asked if we need to respond to Mr. Stimmel. Board Member Heimlich said no, this would’ve gone to Joyce Weaver (Pulaski County Surveyor).

Surveyor Sterrett reported that he had the Jamroz Tile cleaned out. Chairman Schmierer asked if the last thirteen hundred feet was all sand. Surveyor Sterrett said, “Pretty much sandy, rocky and had some tile bats (chips and pieces of old tile) in there. I had Tony Cain dig the holes. He dug nine holes to open the tile up so they could get the jet in it. So he was over there two days. He hadn’t started to repair them yet so he probably had another day to repair them.” Chairman Schmierer said, “You say there was some broken tile after you got in there?” Surveyor Sterrett said, “We had two holes two hundred foot apart, we had about a half a dozen bats come out, we pulled them out of the tile. So we don’t know if they were in there from previous repairs or whether the top of the tile has caved in some. The tile we dug up in those nine spots was good tile. It was an 8 inch good tile, not rotten.”

Chairman Schmierer asked if Mr. Primmer was out there. Surveyor Sterrett answered, “Yes, he was glad to see it getting done. He had two air wells that had about a foot and a half sump in them and we sucked them out twice so there wouldn’t be any silt in them. Those probably should be maintained. The dirt will come down and fall out and the water will go on. The first 25 feet we hit a tile that had settled down below the other one so we had to dig up his driveway. He knew about where the tile was and that was a good thing. Dave Hall was farming next door and stopped and Furrer was there.”

Chairman Schmierer said, “Now, Furrer put a bunch of tile in there.” Surveyor Sterrett said, “I questioned him about that and he thinks he is within the guidelines of what they were being assessed. He is supposed to get me a map. Primmer just wants him to be assessed for whatever he is draining in to it. He has 39 acres and being assessed for 15 acres.” Chairman Schmierer said Dave Hall asked him about it and they thought he drained the whole 40 acres. Surveyor Sterrett said, “He might. It depends on where he put the tile.” Chairman Schmierer said, “I thought Furrer tiled the whole field to it, didn’t you?” Surveyor Sterrett said, “Well yes, but there’s another tile coming up through here so it’s not the whole field, somehow he is going into this tile. So he may need to increase it. He is supposed to get me a map and I’ll keep on him about it.”

Chairman Schmierer asked Board Member Heimlich if he can tell any difference in his drainage (C. Bossung maintenance project). Board Member Heimlich said, “Oh yes that made a big difference in that west field.” Chairman Schmierer said it is dropping water now. Board Member Heimlich said there were places where there were probably four or five feet silted. Surveyor Sterrett said he thinks three and a half feet was the most they took out. Board Member Heimlich said Ezra did a nice job leveling that out, too.

Charlie Mellon reported that the State Highway Dept. has the sewer in under Hwy. 16 and it looks like they really lowered it. Board Member Ferguson said that is just north of Headlee. Surveyor Sterrett said that he checked the grade and they were within twelve hundredths.

Board Member Heimlich asked if Surveyor Sterrett knew what they were doing west of Reynolds over the Fraser Drain along the road at the approach to the bridge. Surveyor Sterrett stated that he attended a pre-construction meeting on that. He said they are going to be putting a deck on the bridge. During construction one-way traffic will be controlled by a traffic light.

Attorney Loy reviewed the bids on the Yount Drain. Weaver-Fox Excavating was the low bid. Surveyor Sterrett said his estimate was $2,000.00. Attorney Loy said to be sure they sign the form contract. Board Member Heimlich made the motion to accept the low bid of $2,000.00 from Weaver-Fox Excavating for the maintenance project on the Yount Drain in Cass Township, White County, Indiana. Board Member Ferguson seconded the motion. The motion carried unanimously.

Chairman Schmierer briefed Attorney Loy on the discussion held earlier on the lawsuit from Tabor Brooks against Paris Eldridge at Brookston. He stated, “Denny and I went down and looked at it. He has pictures of it and everything. Our opinion is, it had a swale across it (Brooks ground) for all the water to go south, it has always gone south across him (Brooks). The water can’t go the other way. There’s no way, it’s all sloped the other way. Tabor Brooks put in a new septic system, in fact he has put in two, and he has raised the ground for the septic system probably two foot or better and taken the swale out. So now the water is standing on his own property because he doesn’t drain it off. We told him to put a swale in to get rid of that water.” Attorney Loy said, “Through his own ground.” Right, when he puts a swale to the neighbors, there is already a swale from the neighbors up to him.”

Attorney Loy asked, “Then it is nothing the neighbors did?” Chairman Schmierer said, “Well, they’ve got flower beds with tiles underneath them, probably three foot (long) tiles.” (studied photos)

Board Member Heimlich said, “The question is, how do we handle this? Is there a Hearing before us?” Attorney Loy stated, “At first it has to be referred to Denny (Surveyor) for analysis.” Surveyor Sterrett stated, “I can’t see how you can use Indiana Code.” Attorney Loy said, “I don’t think it applies.” Surveyor Sterrett said, “I don’t either. Indiana Code § 36-9-27.4, because I don’t see an obstruction.” Attorney Loy agreed. Attorney Loy stated, “If a petition is filed, then the County Surveyor is to promptly investigate as to whether the obstruction exists. If the Surveyor finds than an obstruction does exist, then he reports that.” Chairman Schmierer stated, “There is no obstruction from that property up there that is obstructing his water, it can’t run uphill.” Surveyor Sterrett said, “That’s right, if anything, he’d be the obstructer.”

Attorney Loy said you are to have a Hearing. Secretary Kiser said that Brooks’ attorney, Lee Griffith, is on the agenda for the May 17, 2004 meeting and that would give time to call that a Hearing. Attorney Loy said to send the two combatants a letter of the findings and a copy of the petition to the Eldridges.

Surveyor Sterrett reported that he went back to the site at the TP&W or Hoosier Lift. He said the water was down about two feet. There was nobody there but they were pumping out of the pit and they had a hose down in the pit. He said he thinks it should come down some more.

Board Member Ferguson made a motion to approve the minutes. Board Member Heimlich seconded the motion. The motion carried unanimously.

Surveyor Sterrett stated that he got the bill on the grouted rock chute on the O.K. Ranier for $352.00. Chairman Schmierer said that’s what we said, ten percent. Surveyor Sterrett said he didn’t know they were finished so he will now go look at it.

Surveyor Sterrett said, “So we need to notify these two combatants (Brooks vs Eldridge) with some kind of letter?” Attorney Loy said, “Right, a notice of Hearing. I assume Brooks has sent a copy of this petition to Eldridges but send a copy to them anyway.” Surveyor Sterrett said, “Actually it says in the petition that their water drains south.” Attorney Loy said, “And that’s wrong, right?” Surveyor Sterrett said, “No, if it drained north then we WOULD have an obstruction.” Attorney Loy said, “They admit in their petition it is going downhill towards them.” Attorney Loy looked at the Code book again at this time. He said it may be if the Surveyor reports back that there is not an obstruction that you don’t have to have a Hearing. Attorney Loy read from the Code book, “If the Surveyor upon investigation finds an existing obstruction in the drain and the obstruction is defined as a condition that exists within or near a drain prevents or significantly impedes the flow of water through the drain……” I think you have to have a Hearing only if there IS an obstruction. You (Surveyor Sterrett) are prepared to submit a report that says that you investigated and there is not an obstruction.” Surveyor Sterrett answered yes. Attorney Loy stated, “Then we won’t have a Hearing.” Chairman Schmierer asked can we send them a letter then? Attorney Loy answered yes. Board Member Heimlich stated that if the defendants’ ground is upstream from the plaintiffs’ ground then by definition he could not obstruct. Everyone was in agreement that the only one who could obstruct would be downstream. Board Member Heimlich stated that this law was so you didn’t have to take it to court.

Chairman Schmierer adjourned the meeting.