Battisto v. Perkins

Henderson, J., delivered the opinion of the Court. This appeal is from judgments for the defendants ordered by the trial court in directing a verdict for the defendant Perkins at the close of the plaintiffs’ case, and for the other defendants at the close of the whole case. The action was brought by the owners of eight lots improved by dwellings in Queens Chapel Manor Subdivision, Prince George’s County. The appellees are the owners of a tract of land containing some 28 acres located about 1400 feet from the appellants’ lots and upon a higher level.

Prior to the spring of 1952 the tract was unimproved and covered with trees and vegetation which retarded the normal flow of rain water. As a result of grading, bulldozing and building activities incident to the construction of a number of new residences, it was alleged that the natural flow of water was accelerated and large quantities of mud and debris were repeatedly precipitated upon the plaintiffs’ properties, causing great damage. The declaration was drawn upon the theory that the appellees committed an actionable wrong in the nature of a private nuisance. There was no allegation of negligence.

There seems to be no question that an action at law will lie for a substantial injury of this character, under some circumstances at least. See Harms v. Kuchta, 141 Md. 610, 612 . In Laird, Rock & Small v. Campbell & Sons, 200 Md. 627 , the ⁵⁴⁶ action was based on negligence. Historically, the action for nuisance is older than the action for negligence.

The use of the term “nuisance” has been criticized on the ground that it confuses the invasion of the property right of use and enjoyment with the conduct that is the true basis of liability. See Prosser, Torts (2d ed.), § 72, and Restatement, Torts, Introductory Note to section 822. In section 833, comment (a), it is noted that “Where the invasion is not intentional, the liability of the person harmfully interfering with the flow of surface waters depends upon whether his conduct has been negligent, reckless or ultrahazardous, * * *. Where, however, the invasion is intentional, liability depends upon whether the invasion is unreasonable * * *.” Most of tire cases in Maryland involving the invasion of the right have been brought in equity, for injunction and damages.

Whitman v. Forney, 181 Md. 652, 656 ; Hancock v. Stull, 206 Md. 117, 119 ; Baltimore County Com’rs v. Hunter, 207 Md. 171, 179 . See also Superior Construction Co. v. Elmo, 204 Md. 1, 5 . These cases recognize that an upper owner has the right to have surface waters flow naturally over the lands of lower owners, according to the civil law doctrine adopted in Maryland and a number of other states. Whitman v. Forney, supra.

In that case the Court also adopted and applied the rule, known as “reasonableness of use”, involving a balance of benefit and harm. Cf. Enderson v. Kelehan, 32 N. W. 2d 286 (Minn.), and Spaulding v. Cameron, 239 P. 2d 625 (Cal.). The Restatement seems to take the position that this rule is applicable in actions at law as well as in equity.

The Maryland cases make it clear that the upper owner cannot, with impunity, artificially increase or concentrate the natural flow. Biberman v. Funkhouser, 190 Md. 424, 429 . The rule applies to urban as well as rural lands. In the instant case it is true that the appellees had a right to improve their property and prepare it for the erection of houses, but it was entirely foreseeable that the removal of all ground cover might increase the run-off and cause damage to the lower owners, and we think the upper owners were under a duty to use reasonable precautions against harm.

What would be reasonable is ordinarily a question for the jury. There was testi ⁵⁴⁷ mony that the only precaution taken at the time grading was begun was the placing of several logs at the corner of the tract where Jamestown Road now exists as a paved street. This was the concentration point for draining the entire tract. Storm drains were not installed until some months later.

There was testimony that there was no damage to the plaintiffs’ properties until after the upper tract was denuded, and that the tract remained in that state for an unnecessarily long time before construction was begun. The plaintiffs’ witness O’Done testified that Mr. Perkins, who owned a large portion of the tract and was employed as the developer of the other portions, told the witness that “there was nothing he could do about it. It was an act of God.” Notice of the damage was thus brought home to the developer, yet no effective steps were taken to correct the condition, which continued unabated with