dissenting.
I respectfully dissent.
The majority maintains that there is a clear trend in this state toward ameliorating the harsh consequences which can result from the strict application of the English rule. Based upon this conclusion, -the majority distinguishes the instant case from City of Greencastle, New Albany, and Wiggins finding that the plaintiffs in those cases lost only water, in which they had no property rights, while, in the instant case, the Defiers lost the subjacent support of their land, something to which they had a legal right.
However, the majority is attempting to interject recovery where our supreme court has specifically held that recovery does not exist. City of Greencastle, New Albany, and Wiggins all stand for the proposition that ground water becomes a part of the land under which it is present and belongs to the owner of the land. The person who owns the land over which the water runs may put that water to use to the fullest extent to further enjoyment of the land. Wiggins, 452 N.E.2d at 964; New Albany, 14 Ind. at 114; City of Greencastle, 23 Ind. at 189. If, in the further enjoyment of the land, an owner causes loss to a neighbor’s land, the inconvenience to the neighbor falls within the description of dam-num absque injuria,9 Therefore, there is no action for damages from the resulting injury unless the injury is done maliciously. Wiggins, 452 N.E.2d at 964.
Here, the City of Valparaiso, as the owner of the easement containing the sewer line, not only had the right to use the land, including the ground water running below the surface, but also had the right to use that water to the fullest enjoyment of the property. When the sewer problems emerged and the City was required by the Indiana Department of Environmental Management (“IDEM”) to remedy the situation, the City studied extensively the sewer problem, and researched many options to alleviate the problem. After researching and rejecting options that were too costly, time consuming, and problematic, the City determined that the best recourse was to build the lift station.
There is no evidence before us that the City’s decision to build the lift station, and the dewatering that resulted therefrom, was made in an attempt to injure the Defiers. To the contrary, the evidence shows that because the City was faced with a serious situation which included the possibility of sewer back-ups and the ex-filtration of sewage into the ground, the City, after extensive research, chose the option that would remedy the situation in a cost effective and timely manner.
The dewatering of the site was not done with malice or with the intent to harm the Defiers. It was, instead, a beneficial use of the water in that it allowed the lift station to operate which, in turn, remedied a serious sewer problem. Applying the reasoning in City of Greencastle, New Albany, and Wiggins, the City should not be held liable for the resulting injury to the Defiers’ property.
The trial court should have entered summary judgment.
. Damnum absque injuria is defined as loss, hurt, or harm without injury in the legal sense. Blacks Law Dictionary, p. 393 (6th Ed.1990).