Brazerol v. Hudson

Baknes, J., delivered the opinion of the Court. The two questions presented to us in this case involving alleged trespass to land are (1) Did the appellants, Alfred J. Brazerol and Shelby J. Brazerol, his wife — plaintiffs below—prove a trespass to their land? and (2) Did the trial court err in allegedly finding justification for the supposed trespass when there had been no special plea filed by the appellees — defendants below — pleading justification? The Circuit Court for Prince George’s County (Loveless, J.) dismissed the action upon a motion by the defendants at the end of the plaintiffs’ testimony, denied a motion by the plaintiffs for a new trial and after judgment absolute against them for costs, the plaintiffs filed a timely appeal to this Court. Finding no error in the trial court’s rulings, we shall affirm the judgment.

The plaintiffs Brazerol own the property 3322 Fairhill Drive in the Kay Park subdivision of Prince George’s County. Their next-door neighbors are Nicholas Hudson, and Phyllis Hudson, his wife, who own the property 3324 Fairhill Drive. On May 2, 1967, Mr. Hudson approached his neighbor, Mr. Brazerol, and said that the Hudsons wished to build a swimming pool on the Hudson prop ²⁷¹ erty but that there was not room on that property to allow a piece of equipment in the Hudson back yard to dig the hole for the pool. Mr. Hudson then requested Mr. Brazerol’s permission to allow a shovel to come on the Brazerol property in order to get to the Hudson’s back yard, stating that if there was any damage Mr. Hudson would take care of it.

Mr. Brazerol gave the requested permission and a few days later, the shovel came onto the Brazerol property and went over to the Hudson’s back yard. On May 13, 1967, a sand and gravel dump truck, fully loaded, arrived at the Brazerol property. Mr. Hudson’s son, Rodney, came to the door of the Brazerol home and stated to Mrs. Brazerol that his father wanted Mr. Brazerol to move the automobile of the Brazerols out of the driveway. Mrs. Brazerol stated that she “would be out in a few minutes to move it, and I went out to move it.” Mr. Brazerol did not move the Brazerol automobile because he “was in bed asleep.” When Mrs. Brazerol drove the Brazerol car down the street and returned to her home, the dump truck was in the Brazerol yard.

She did not ask the truck driver to get off the Brazerol property, either then or later. She knew that the dump truck was delivering sand to the Hudsons. After the operator of the dump truck had left, she looked out of her window and saw the sand dumped into the Brazerol yard. The sand remained there “at least a couple of weeks,” after which it was “pretty much taken away.” Shortly after the dump truck had left, Mrs. Brazerol noticed a crack in the wall of the laundry room in the basement of the Brazerol home over the washing machine.

While the dump truck was there, it had started to rain quite hard—“too hard to go out.” She tried to call the trucking company but the telephone number had been changed and the new number was unlisted. About a week after the dump truck incident, a bulldozer came on the property. The bulldozer operator was supposed to level the yard “but he didn’t.” There was evidence of damage ²⁷² from the settling of the cracked wall, as well as dampness and mildew. Two expert witnesses were produced by the plaintiffs.

One, a Mr. Osti, a contractor and manufacturer, estimated that the cost to correct the cracked wall and other damages would be $2,800.00. In his opinion, the wall had been “slightly pushed in” and that indicated to him that this had been done by some outside pressure. On examining the ground on the outside, one could see “there is a depressed area where a heavy vehicle has traversed on it.” The other expert was a Mr. Busada, a real estate broker, appraiser, who estimated the amount of the damage resulting from the cracked wall at $3,000 using a cost approach and a market data approach. In their amended declaration, the Brazerols filed two counts.

In Count I, they alleged that on or about May 1, 1967, the Hudsons asked permission of the plaintiffs to allow a machine to go on the Brazerol property to dig a hole on the Hudson property, the Hudsons agreeing to “take responsibility for damage caused by the equipment.” Relying on this assurance, the requested permission was given and the earth moving equipment came on the plaintiffs’ property on May 6, 1967, and “then on to the defendants which damage has not been repaired.” There was no allegation in regard to what damage was done; but in any event, the proof indicates that some sod, apparently disturbed by the earth moving equipment, had been replaced by the Hudsons. There was no evidence whatever to show that this earth moving equipment had caused the crack in the wall. The Second Count, which is the important one in the case, was in trespass and alleged that on or about May 9, 1970, “without the expressed or implied permission of the plaintiffs” the Hudsons and the defendant, Du-Rite Chemical Corporation (one of the appellees), “or an agent thereof, instructed an agent of the defendant Silver Hill Sand, Gravel and Concrete Company [the remaining appellee] who was the operator of a dump truck to drive up to the driveway of the plaintiffs onto the back ²⁷³ yard of the plaintiffs.” It is then alleged that the truck drove up the driveway “very close to the house of the plaintiffs” causing the foundation of the house to crack and “then proceeded into the yard of the plaintiffs where the truck became stuck, dropped its load of sand and damaged the yard and lawn area.” The damages resulting from the entry of water and the settling of the plaintiffs’ house resulting from the crack in the wall are then alleged. Damages in the amount of $25,000 compensatory