Biberman v. Funkhouser

Collins, J., delivered the opinion of the Court. This is an appeal by Jacob A. Biberman and Mildred K. Biberman, his wife, defendants below, appellants here, from a decree of the Circuit Court for Washington County, granting a mandatory injunction enjoining the appellants from permitting the water and dirt from their property to drain over and upon the property of the appellees here, Richard N. Funkhouser and Janet K. Funkhouser, his wife, complainants below. The Funkhousers are the owners of a single lot, (the Funkhouser lot), located at the corner formed by the streets known as The Terrace and Country Club Road in Hagerstown. The property now owned by the appellants, Bibermans, (the Biberman lots), is located immediately south and southwest of the Funkhouser property ⁴²⁶ and consists of four adjacent lots on the east side of The Terrace.

A contour map made in 1909 and 1911 before any streets in this vicinity were laid out, and the evidence given in this case, proves that the elevation of the Biberman lots and especially the southeast and east portion were originally higher than the Funkhouser lot. Before any grading was done on either property the bulk of the water from the Biberman lots naturally flowed in a northerly and westerly direction, part of it flowing northerly over the Funkhouser lot, and part flowing westerly over what is now The Terrace, into a ravine on the west side of The Terrace as now laid out. Accordingly to appellees’ engineer, before any grading was done on either property, no water falling on the Funkhouser property flowed on the Biberman property at any point. Therefore, as between the Biberman property and the Funkhouser property, the Biberman property is the dominant and upper estate and the Funkhouser property is the lower estate.

The Mayor and Council of Hagerstown, after the contour map was made, established the grade for the streets in this locality. The grade of The Terrace was made higher than the whole of the front part of the Funkhouser lot and higher than a large part of the front of the Biberman lots. In 1939 a predecessor in title erected the house on the Funkhouser lot. Several years later a dwelling was erected on one of the Biberman lots, now the Biberman dwelling.

On account of the raising of The Terrace, the Funkhouser lot was filled in at the front of the house to the grade of The Terrace. The dirt from the cellar was used to make this fill and about eight hundred loads of earth were brought from other property and used for the fill in the front of the Funkhouser lot, which,, before the grading, was about five feet below the curb of The Terrace. Before this fill there was a flow of water from the Biberman lots to the Funkhouser lot. As a result of this fill the front of the Funkhouser lot was raised above the Biberman lots.

The raising of the front of the ⁴²⁷ Funkhouser lot caused water to accumulate at the northwest corner of the Biberman lots. This low spot in the Biberman lots, caused by raising the Funkhouser lot and creating a terrace, developed into a sink hole where thickets and trees grew. The Bibermans later decided to grade off and level their entire property consisting of the four lots aforesaid. They not only filled in the front of the lots to conform to the grade of the Terrace but leveled off their entire property taking large quantities of earth from the southeast corner, which was the highest part of their property, and moving it along the entire length of the Funkhouser lot, thereby causing a bank to be erected along the Funkhouser property as much as three feet in height in some places.

Before the Biberman property was graded the water flowed naturally from the high ground in several directions, thereby more or less scattering the drainage. After the Biberman property was graded and put at its present level, part of the water from the Biberman lots flowed in a northerly and northwesterly direction toward the Funkhouser lot and part flowed in a westerly direction toward The Terrace. Before the Bibermans did this grading, there apparently was no trouble about water concentrating in the Funkhouser cellar. About three months before the Biberman lots were graded the Funkhousers built an outside entrance to their cellar by digging about seven feet below the surface of the ground.

The dirt taken from this excavation was deposited by the Funkhousers in the low northwest corner of the Biberman property, so that whoever bought that property could use that dirt to fill in that low spot. Although there was considerable rain during that period, the cellar was not flooded until the Biberman lots were graded. After the grading of the Biberman lots, the Funkhouser cellar at times was filled with water and mud to the depth of over a foot. This water and mud came through the outside cellar entrance which the Funkhousers had constructed about three ⁴²⁸ months before.

There was no cover over this entrance. However, it was surrounded by a curb about two inches high and a drain was placed at the bottom of the cellar steps. From pictures offered in evidence, water is concentrated along the Funkhouser property and cuts ditches or gullies in the bank caused by the grading. After the grass and shrubbery grew on the Biberman lots, the ditches are not as deep and