Easter v. Dundalk Holding Co.

Henderson, J., delivered the opinion of the Court. The appellant in this case brought an action at law for damages based on a loss of lateral support. It was tried by the court without a jury, and resulted in a judgment for the defendant. The court held that the action was barred by the statute of limitations, which was specially pleaded.

Easter owned a vacant lot fronting on the west side of Belair Road about 684 feet. The entire frontage was from eight to ten feet above the level of the street. He sold the corner lot with a frontage of one hundred feet to the Gulf Oil Corporation. The purchaser graded the lot to the level of Belair Road and erected a gasoline station.

On July 23, 1945 Easter sold the defendant ³²⁶ the adjoining lot with a frontage of 250 feet. This left the plaintiff an unimproved lot with a frontage of about 334 feet. The defendant graded its lot to street level and erected a moving picture theatre. In doing so it left a vertical cut at or over the dividing line.

The entire job of grading was begun September 14, 1945 and finished October 16, 1945. Suit was filed on April 22, 1949. The appellee contends, and the court held, that the plaintiff’s right to sue accrued when the cut was made, and this was more than three years before suit. The appellant contends that the court erred in that the period of limitations does not run from the time of the removal of support, but from the time when the damage occurs.

Schwaber, the president of the defendant corporation, testified that he told Easter he intended to grade the lot before he bought it, and suggested that Easter grade his lot at the same time. Easter declined to do so, but tried to sell him the adjoining lot. Later, Schwaber proposed to erect a wall on the defendant’s lot to prevent erosion. This would have required the erection of groins running over the line, and temporary access to the Easter lot to pour the concrete.

Easter threatened to shoot him if he set foot on his lot. Easter testified that Schwaber Agreed to put up a retaining wall, but simply neglected to do so. Instead he insisted that Easter remove certain trees near the line, went on Easter’s lot and cut them without permission, and early in 1947 “sniped off” part of the cut on Easter’s lot, grading it to forty-five degrees. Since it was not seeded, the erosion continued.

When he realized that Schwaber was not going to build a wall, he threatened suit. Schwaber never asked his permission to go on his property to build a wall. However this may be, erosion began, as might have been expected, as soon as the cut was made. On November, 4, 1945 Schwaber wrote Easter: “We have had considerable rain and there is quite a bit of erosion on this bank.” He asked permission to take down, at his own expense, a large tree on Easter’s lot that was ³²⁷ in danger of falling on the theatre.

Easter never replied to this letter. The common law rule that the owner of land in its natural condition is entitled to lateral support has been recognized in Maryland as a property right, not dependent upon proof of negligence. B. & P. RR. Co. v. Reaney, 42 Md. 117, 135 ; Shafer v. Wilson, 44 Md. 268 ; Mullan v. Hacker, 187 Md. 261, 266 , 49 A. 2d 640 .

See also 3 Tiffany, Real Property (3d ed.) § 752. These were cases of injury to structures and no question of limitations was involved. In the Reaney case, however, Judge Alvey cited the English case of Bonomi v. Backhouse, (1859) El. Bl. & El. 646; affirmed in Backhouse v. Bonomi (1861) 9 H. L. Cas. 503, for the proposition that an action is maintainable, not from the moment a lawful excavation is made, but from the time when some damage arises therefrom.

Also cf. Maberley v. Peabody & Co. (1946) 2 All E. R. 192. It follows that limitations does not start to run until damage occurs. The weight of American authority