Beane v. Prince George's County

Moore, J., delivered the opinion of the Court. This matter is before us on the appeal of Eugene Beane, Sr., et ux., plaintiffs below, from an Order of the Circuit Court for Prince George’s County (Judge Robert B. Mathias) granting them limited injunctive relief against Prince George’s County following a hearing which was mandated by the Court of Appeals in Beane, et ux. v. McMullen, et al., 265 Md. 585 , 291 A. 2d 37 (1972). A cross appeal filed by Prince George’s County, co-defendant below, from that Order was dismissed by this Court as not timely filed under Rule 1035 b(3). The subject matter of this appeal, as it was in part of the prior case, is the improvement of a portion of Sansbury ³⁸⁶ Road in Prince George’s County by the Prince George’s County Department of Public Works and the subsequent installation of catch basins and a 24 inch corrugated metal drainage pipe extending from the intersection of Sansbury Road and Ritchie-Marlboro Road in a westerly direction approximately 450 feet along the south side of Ritchie-Marlboro Road past four residences and onto the property of the Beanes, where it terminated in an outfall 40 feet inside their property.

From there the water drained into the roadbed of the abandoned Forestville-Oak Grove Public Road roughly separating the properties of the Beanes and their neighbors, the McMullens, until it passed through a pipe under Fernwood Road which forms the western boundary of the Beane property. 1 The trial court on remand conducted a prehearing conference and thereafter heard testimony of seven witnesses and received in excess of thirty exhibits. The testimony was transcribed and the court subsequently filed a comprehensive 46-page Opinion and Order. However, the injunctive relief provided in the Order was substantially the same as that from which the original appeal was taken, namely, that the 40 foot portion of the offending pipe be removed from the Beane property so that the outfall would be at the common boundary line of the Beanes and McMullens. For the reasons set forth below, it is our determination that the appellants are entitled to something more at the hands of the County and that the case for equitable relief must again be remanded for determination of a solution that will be fair to both parties.

Cf. Turner v. Washington Suburban Sanitary Commission, 221 Md. 494 , 158 A. 2d 125 (1959). The perimeter of our inquiry into the merits of the present appeal was drawn by the Court of Appeals in Beane. There the Beanes initially sued their neighbors, the McMullens, for alleged invasion of privacy, unlawful interference with the plaintiffs’ business and slander of title.

The Beanes later ³⁸⁷ joined the Board of County Commissioners of Prince George’s County as an additional party defendant after the McMullens filed a counterclaim alleging water damage to their property caused by actions of the Beanes. The latter also filed a counterclaim against the McMullens and the County Commissioners, alleging that the Commissioners and their agents, servants and employees with the help and assistance of the McMullens did “unlawfully, willfully and wrongfully and without just excuse collect various surface waters” which did not naturally flow onto and upon the Beane property into a man-made drainage ditch and pipe, casting the water upon the Beane land, causing great damage and loss of use of the Beane property. In addition to damages, the Beanes sought an injunction against the County Commissioners prohibiting the County “from further allowing unnatural surface water to flow on the lands of the plaintiffs.” They elected a jury trial of their counterclaim. At the conclusion of the testimony the Circuit Court, Mathias, J., directed a verdict in favor of the McMullens on all three counts of the Beanes’ declaration and counterclaim against them.

The McMullens’ counterclaim against the Beanes and that of the Beanes against the County Commissioners were submitted to the jury, which returned a verdict against the McMullens on their counterclaim and in favor of the Beanes against the County Commissioners for $2,000. What transpired next is recounted by Judge Barnes, writing for the Court of Appeals, p. 598: “After the verdict, the lower court considered the matter of injunctive relief in chambers and orally decided initially to deny that relief. Later, the lower court, on its own motion, decided to have a further hearing in regard to injunctive relief because of a lack of a survey and topographical study of the land below the drainage pipe in question. The Beanes objected to this procedure, relying upon the finality of the verdict of the jury on the question of liability of the County and the consequent need for injunctive relief, and further because of the lack of ³⁸⁸ any motion by any of the parties for the taking of additional testimony on the merits. “At the further hearing a plat prepared for the Washington Suburban Sanitary Commission by an unidentified firm was offered in evidence by the County Commissioners; and its admission into evidence was strenuously objected to by counsel for the Beanes.

It was, however, received into evidence and the lower court construed it to contain facts contrary to the facts upon which the jury based its verdict. The lower court declined to grant the full injunctive relief prayed for by the Beanes, but did require the County Commissioners to remove so much of the offending pipe as was on the Beane property. The Beanes filed timely appeals from all adverse rulings. No cross-appeal was filed by the County Commissioners.” (Emphasis added.).

The Court of Appeals affirmed the actions of the trial court except with respect to the sufficiency of the injunctive relief. As to this, it held that the lower court, contrary to a contention by the Beanes, had not abused its discretion in taking additional testimony in regard to the practical manner in which injunctive relief might be fashioned. It pointed out, however, that the court in fashioning injunctive relief was not at liberty to disregard, as it had, “the premises already established by the jury verdict and judgment,” for Rule BF 43, entitled “Equitable Principles Applicable to Claim for Injunction,” “does not mean that in considering injunctive relief ancillary to the action at law, the trial court is to proceed as if the granting of injunctive relief were a matter de novo in equity with the right to the trial judge to disregard or reach conclusions contrary to the factual matters already determined by the jury. In short, the jury’s factual findings — either upon a special verdict or inherent in a general verdict — are conclusive in regard to those facts as if the trial court sitting as a trier of fact ³⁸⁹ had so found.

If it be concluded that the jury had no substantial evidence upon which to reach its verdict, the remedy is by the granting of a judgment n.o.v. If there were other deficiencies in the verdict, a new trial could be granted. In the present case the trial court properly we think, declined to grant the County’s motion for a judgment n.o.v., concluding that there was legally sufficient evidence to support the verdict. The County made no motion for the granting of a new trial and no new trial was granted. Thus the verdict and judgment became final and no appeal from the judgment was taken to this Court.” (Emphasis added.) (p. 613). “Accepting the facts implicit in the jury’s verdict as established in the case,” the Court continued, “the Beanes would be normally entitled to an injunction against the County to alleviate the increased flow of surface water upon their land resulting from the canalization of surface water by the County’s installation of the catch basins and pipe.” 2 The trial court, however, in the Court’s view, while requiring the County to remove so much of the offending pipe as was on the Beanes’ property, failed in its order “to grant the Beanes any substantial relief from the canalization of the surface water and its increased flow over and above the natural flow of such water prior to the County installations.” Moreover, although, as argued by the County, the equitable doctrine of comparative hardship may be applicable in the consideration of the grant or denial of injunctive relief in actions at law, “no specific consideration was given by the trial court” to any such principle.

Consequently, “in view of all the circumstances,” the Court reversed the Order granting the injunction and remanded ³⁹⁰ the case to the lower court specifically “for the purpose of taking additional testimony if required, in order to fashion an order, in proper form, to give more complete relief to the Beanes, in addition to the removal of the 40 feet of pipe from their land, from the abnormal and unlawful flow of water on the Beane property resulting from the County installation, unless some doctrine of equity precludes injunctive relief in which event the Beanes would be enabled to proceed, without prejudice, to recover recurring damages resulting from such installation subsequent to July 21,1971, when the $2,000.00 judgment should have become final.” Upon remand, on January 3, 1973, Judge Mathias conducted a further hearing for the purpose of taking additional testimony on the issue of what “more complete” injunctive relief, if any, the Beanes were entitled to pursuant to the mandate of the Court of Appeals. On May 29, 1973 he filed the detailed Opinion and Order of Court which again required the County to remove so much of the offending pipe as extended onto the Beane property and to regrade the area around the mouth of the pipe to permit the water to flow down the old roadbed; and in addition to maintain inspection of the effluent from the pipe and to abate any pollution manifesting itself therein, evidence of which had been presented by the appellants at the January hearing. He again refused, however, to grant the full injunctive relief prayed for by the appellants, namely either to 1) remove the pipe and catch basins and restore the drainage to its status prior to the installations, or 2) carry the present pipe forward through the Beane property and have the water deposited in a suitable place. In denying the appellants further injunctive relief the trial court was cognizant of the following observation of the Court of Appeals in Beane (p. 617): “It is true that the removal of the 40 feet of pipe on the Beane land — placed there without the consent of the Beanes and obviously a continuing trespass — does abate a continuing trespass of that 40 feet of pipe; but it does nothing to abate or relieve the abnormal and unlawful flow of water on ³⁹¹ the property of the Beanes.

Indeed, as a result of the order, 40 feet more of the Beane land will be subject to the abnormal and unlawful flow of water! ” The trial court was aware, more particularly, of the Court’s determination that inherent or implicit in the jury’s general verdict and therefore “established in the case” were the factual findings that prior to the improvement of Sansbury Road by the County and the subsequent installation of the pipe from that road to the Beane property 1) there had been no problem of water continually standing in the old roadbed; 2) the only land draining into the old roadbed had been that of the McMullens and perhaps the land of the Mabes, next to the McMullen land; and 3) there had been no pre-existing sloping ditch from Sansbury Road to the Beane property which the County had merely utilized in installing the pipe. Notwithstanding the Court of Appeals’ holding that these facts and the ultimate finding of an undue channelization of surface water by the County with the attendant damaging effects on the Beane property had been determined by the jury verdict, Judge Mathias in denying further injunctive relief specifically found the following, based upon his examination of “the total evidence, including the exhibits and testimony presented during the July 1971, August 1971 and January 1973 hearings”: 1) “that there has been no evidence introduced to show that the amount of water now standing in the old roadbed has been increased over that which always stood therein prior to the Sansbury Road improvement; ” 2) “that the present Sansbury Road watershed, or that area of land presently draining into the Ritchie-Marlboro Road drainage system pipe ³⁹² which pipe extends onto the plaintiff Beane’s land by forty (40) feet, has not been changed from what it was prior to the Sansbury Road improvement; ” and 3) “that the natural drainage waters from Sansbury Road and the surrounding watershed always drained into the old roadbed running behind plaintiff Beane’s property and then into a drainage pipe located under Fernwood Drive, and that prior to the installation by the County of the Ritchie-Marlboro Road drainage pipe, the waters from Sansbury Road ran past the four Ritchie-Marlboro Road houses in a then-existing, now-covered drainage ditch having a 3' wide macadam surfaced bottom gutter and four 12" C.M.P. located underneath the entrance driveways of all four houses.” It is clear that by these findings the trial court placed itself squarely at variance with what the Court of Appeals had ruled to be the facts established in the case by the jury’s verdict. Indeed he did not hesitate to say so, voicing the belief that with respect to one of those issues of fact the Court of Appeals was proceeding upon an incomplete record supplied to it by the appellants’ counsel 3 and that with respect to another, the Court’s “conclusion is inconsistent with the evidence.” In sum, the trial court stated, the “findings of fact by the Court do not necessarily follow from the jury’s verdict awarding $2,000.00 to the plaintiff Beane,” an award that is “more reasonably” found to be “one of nominal damages awarded the Beanes for a technical trespass q.c.f. resulting from an increased flow of water upon the plaintiff’s land.” Applying equitable principles he ³⁹³ found that the County had made a reasonable use of the surface waters under its control and that alternatively, the facts of the case brought it within the ambit of the equitable doctrine of comparative hardship. Our inquiry must be whether the facts do indeed support the application of either of those principles and hence whether the court was clearly erroneous in shaping his injunction in accordance therewith.

We point out initially that, contrary to the lower court’s reading of the opinion, the Court of Appeals in Beane made no “findings of fact” as that was not its function, but by its holding merely affirmed the general principle that every material issue of fact submitted to the consideration of the jury is determined by a general verdict in favor of the prevailing party. 89 C.J.S. 485. Manifestly the material issues in the Beanes’ dispute with the County were whether there was a pre-existing sloping ditch from Sansbury Road to the Beane property, whether the only land draining into the old roadbed prior to the County’s installations was that of the McMullens and the latters’ immediate neighbor (the Mabes), and whether those installations caused an abnormal flow of water into the old roadbed and contributed to a condition of continuous standing water there. The Court of Appeals considered these issues, as to which “the jury believed the Beane testimony,” resolved by the jury verdict in favor of the Beanes and the corresponding facts to be established in the case. This determination is, we find, conclusive of the question of whether the doctrine of reasonableness of use of surface waters supports the trial court’s refusal to grant the Beanes “more complete” injunctive relief.

The doctrine of reasonable use was developed in equity to mitigate the rigors of the civil law rule, adopted early in Maryland, pertaining to the control of the natural flow of surface waters. That rule was stated by Judge (later Chief Judge) Prescott in Sainato v. Potter, 222 Md. 263 , 159 A. 2d 632 (1960), as follows: “.. . the owner of higher land is entitled to have surface water flow naturally onto the lower land of an adjoining landowner, [citing cases.] And the ³⁹⁴ lower landowner cannot obstruct the running of natural surface waters onto his land from that of the higher owner, [citing cases.] This rule is, however, subject to the important limitation that the higher landowner cannot artificially collect surface water and discharge it at one point over the lower land, so as to injure it, nor can he precipitate it in greatly increased or unnatural quantities upon his neighbor below to the substantial injury of the latter.” [citing cases.] And in Biberman v. Funkhouser, 190 Md. 424 , 58 A. 2d 668 (1947), it was said at p. 429: ‘This rule of the civil law [which accords to the owner of the upper land a right to the uninterrupted flowage of surface waters] is subject to the qualification that the upper owner has no right to increase materially the quantity or volume of water discharged on the lower land owner . .. [nor] to discharge water into an artificial channel or in a different manner than the usual and ordinary course of drainage, or put upon the lower land water which would not have flowed there if the natural drainage conditions had not been disturbed. Neubauer v. Overlea Realty Co., 142 Md. 87, 99 , 120 A. 69 .” 4 But in Sainato, supra, the Court described the tempering role of equity as applied to