Bosse v. Koehler

Smith, J., delivered the opinion of the Court. Appellant, Hammond E. Bosse (Bosse), a builder, contracted to sell to appellees, Melvin C. Koehler and Jeanette D. Koehler, his wife, (the Koehlers) a home in Anne Arundel County “to be constructed with workmanship and materials comparable to” a specified home in the same development. Although the contract did not mention water supply, it is conceded that it was intended, as Bosse puts it in his brief, that the Koehlers were to receive “useable water”. We shall here affirm a judgment entered in the Circuit Court for Calvert County in favor of the Koehlers against Bosse in the amount of $1350.00, the amount paid by them for a new well.

The Koehlers made settlement for the property on May 21,1968, the same day on which the well was drilled. They moved in the first week of June, at which time they ⁵⁹⁵ found that “the water was muddy and sandy.” Upon the advice of Bosse, they let it keep running, but it did not clear up. The well driller returned. Problems continued.

Health department analyses at various times showed nitrite and nitrate concentrations above the “desirable range”, and at least one report showed a free ammonia content above that range. The health department report form comments as follows: “Nitrogen—The main purpose of nitrogen examination is to determine the amount of decomposing organic matter present. In any event, it is a warning of possible pollution and the sanitary quality of a water. The nitrogen is broken down into AIuminoid, Ammonia, Free Ammonia, Nitrites and Nitrates.” It gives the significance of the nitrite reading as: “Represent organic matter undergoing bacterial oxidation.” Relative to nitrate it comments: “Organic pollution has been completely mineralized.” At some times the water was reported as “bacteriologically safe for drinking purposes”, while at other times it was reported as contaminated.

The color of the water seems to have differed substantially from what one normally expects for drinking water. The Anne Arundel County Health Department commented in a form letter to Mr. Koehler on July 19,1968: “The organisms, the appearance of which cause us to give your supply an unsafe rating, are in themselves harmless. However, they serve as a warning that something is getting into the supply which should not be there. The contamination may range from just residual dirt intro ⁵⁹⁶ duced during construction or repair to active infiltration or animal or human waste.” On February 19, 1969, the same department advised Mr. Koehler by other than form letter: “A chemical analysis has been made of a water sample taken from your well on February 3, 1969.

The results of the sample indicate that nitrite and nitrate contents are slightly excessive. Since previous bacteriological samples have indicated contaminated conditions of the water supply, we highly recommend that steps be taken toward chlorination of the water supply. The alternative is to drill a new deep water well.” A subsequent report relative to a sample taken on April 14, 1969, showed that as of that date the water was free of contamination. That report was forwarded on April 16.

By that time the die appears to have been cast, however, because on May 8 a well driller other than the driller employed by Bosse applied to the Department of Water Resources for a permit to drill a well which was completed on May 29, 1969. It ultimately produced clear, potable water. An interesting sidelight of the case is that Bosse now employs as the well driller for his houses the driller whom the Koehlers hired in lieu of the one who drilled the first well. The trial judge in his opinion said in pertinent part: “Now the facts in this case seem to disclose to me that for some reason the well originally installed on this lot did not behave the way it was supposed tó behave.

Every once in a long time a drilled well, or driven well, or whatever you want to call them, artesian wells if they are flowing, doesn’t behave the way they are intended to behave. Since the source of the trouble is under a lot of