## Facts

- In 1896, Henry Moseley and William C. Bohn owned adjoining farms in Miami County, Indiana.
- Moseley’s land drained through an open ditch that crossed Bohn’s land.
- Moseley and Bohn entered into a written contract in which, in exchange for Moseley’s consent and $40, Bohn agreed to straighten the ditch and install drain tile through the ditch’s entire length.
- The contract stated Bohn would “permanently maintain” drain tile “of sufficient capacity” to provide an adequate drainage outlet from a specified twelve-inch-tile connection point at the north line of Moseley’s land.
- The contract further provided: “Backwater at said point to be conclusive evidence of lack of said capacity.”
- Over time, Moseley’s farm came to be owned by Edith Moseley (plaintiff/appellant).
- Bohn’s land came to be owned by various successors, including Merrill and Joanna Gates and sixteen other landowners (defendants/appellees). The case was captioned against Robert Bishop, et al.
- The tile drain ran across the Gateses’ land.
- In 1982, Edith Moseley discovered the tile drain was broken or blocked, and water backed up onto her land, causing damage she attributed to inadequate drainage.
- Moseley sued the defendants for damages, alleging they were bound, as successors to Bohn, by the contract’s obligation to permanently maintain the drain.
- The trial court ruled the covenant did not bind the defendants and also found Moseley did not prove the defendants’ conduct caused her losses. Moseley appealed.

## Issues

1. Whether the 1896 contract obligation to “permanently maintain” the drain tile was a real covenant running with the land, binding successors to Bohn’s land and enforceable by Moseley as successor to Henry Moseley.
2. Whether the trial court erred in finding Moseley failed to prove causation and damages from the defendants’ failure to maintain or repair the drain, given the contract’s “backwater” clause and the evidence of backup and flooding.

## Decision

- The Indiana Court of Appeals reversed the trial court’s judgment and remanded.
- The court held the promise to “permanently maintain” the drain tile was intended to bind successors and was a covenant running with the land.
- The court further held the trial court’s causation determination was contrary to the evidence in light of the agreement and the proof of backwater and drainage failure.

## Legal Principles

- A covenant runs with the land when the original parties intended it to bind successors, the covenant “touches and concerns” the land (affecting the land’s use or value), and the required privity of estate is present.
- An agreement to maintain a drainage improvement serving a specific parcel can touch and concern both the benefited land (adequate drainage for farming use) and the burdened land (an ongoing duty tied to the condition and use of the servient parcel).
- Language calling for “permanent” maintenance and tying performance to a specific drainage connection point on the land supports a finding that the parties meant the obligation to bind later owners.
- Parties may define contractually what will constitute proof of inadequate performance; a clause making “backwater” at a designated point “conclusive evidence” can establish lack of capacity and support a finding of breach and causation when the condition occurs.

## Conclusion

The court concluded that the 1896 agreement created a covenant running with the land requiring Bohn’s successors to maintain the drain tile serving Moseley’s farm, and that the evidence—together with the contract’s backwater clause—supported breach and causation; therefore, the defense judgment was reversed and the case remanded.


Moseley v. Bishop, 470 N.E.2d 773 (1984)