Finley v. Teeter Stone, Inc.

Barnes, J., delivered the opinion of the Court. This appeal involves a claim for damages alleged to have resulted to at least 35 acres (and possibly 57 acres) of improved farmland in Carroll County. The land in question is owned and occupied by the appellants, George M. Finley and Elizabeth Englar Finley, his wife, (Finleys), who claim that the quarrying operations of the appellee, Teeter Stone, Inc. (Teeter) on adjacent land has resulted in the Finleys’ land being dewatered, thereby causing damage by reason of substantial subsidence. The Circuit Court for Carroll County (Macgill, C. J.), at the end of the case presented by the plaintiffs, the Finleys, directed a verdict for the defendant, Teeter, and granted a judgment for costs in Teeter’s favor.

From this decision, the Finleys have taken a timely appeal. The facts are presented by an agreed statement of the case pursuant to Maryland Rule 826 g and are not in dispute. The Finleys own and occupy a farm of 282.44 acres located on Stone Chapel Road in the Wakefield Valley in the New Windsor and Westminster Election District of Carroll County. Teeter owns a large tract of land located immediately adjacent to the southwest line of the Finley land.

Since 1958 Teeter has operated a stone quarry on its land and conducts stone crushing operations and other related activities directly connected with the mining and refining of stone. Teeter’s land consists of approximately 100 acres and is roughly rectangular in size. Since beginning its quarrying operations in 1958 it has gradually enlarged its quarry pit so that it now extends virtually from border to border of its tract and to a depth of some 80 feet. In ⁴³⁰ the course of conducting its quarrying operations it is necessary for Teeter to keep its excavation dry by continually pumping out the water that accumulates in its quarry pit.

The testimony of James A. Humphrey ville, a well qualified consulting geologist, was presented on behalf of the Finleys and is not contradicted in this case. His testimony established that the rock formation into which the quarry pit was sunk was limestone which has been named Wakefield Marble. The stone which is quarried is used for road stone and other purposes. By boring operations on the Finley property, the consideration of other data and the exposure in the Teeter quarry, the extreme differential solution and erosion in the form of irregularly shaped pinnacles and spires is demonstrated.

In the area under consideration the striking dipping nature of the rock formation has also contributed to the saw-toothed top of the rock profile. In addition, the rock mass is characterized by jointing, fracturing, faulting and voids resulting from this saw-toothed top of the rock profile. The geologist observed that sink holes related to limestone areas generally and to the Wakefield Valley specifically are not unusual. He demonstrated, however, that the likelihood of the occurrence of sink holes in the 35 acres of the Finley land, now subject to subsidence, in the absence of the removal of water, was negligible.

This area was approximately five feet superior to the level of the natural water table. Inasmuch as the land in question was at the low point of the local portion of the Valley, the movement of ground water in its natural state was slow but the excavation of the quarry and the pumping of water by Teeter caused the velocity of the flow toward the quarry sump to be substantially increased. This action resulted in the dislodging of soils forming the roofs of the solution channels as well as causing soils from the clay mantle to be removed by percolation and flow, thus leaving voids causing subterranean and surface collapse. The rock, itself, is impervious,- but because of the cracks, solution channels (most of them interconnected), cavities, joints and fractures, the formation as a whole is highly permeable by water.

The pumping from the quarry has resulted in a “draw-down” of the water table so that there is a shallow “cone of ⁴³¹ depression” reaching under the Finley land. This lowering of the water table causes the water support for the saturated clay to be removed so that the clay in the plugs on the solution channels begins to move out and is carried away by the water into lower positions on the solution channels. In other situations the dropping of the water table may not directly wash away the clay plugs but allows the clay plugs to desiccate as they are no longer in contact with water. As the overlying mantle of soils over the bed rock in this area varies from 17 to 30 feet, a vault, unsupported by earth, is then formed and may be three, four or even ten feet high.

The diameter may be up to 15 feet and when the rain comes in the late winter or early spring, the sudden rush of water infiltrates and saturates this clay and precipitates a series of collapses. These propagate upwards until the surface of the land caves in and causes sink holes. This has resulted in the sink holes on the 35 acres of the Finley land which were the basis of the study and principal testimony of the geologist in this case. The photographs introduced into evidence indicated the severe nature of the sink holes which had occurred ■on the 35 acre tract.

There was evidence of a qualified real estate appraiser that the land of the Finleys had been substantially damaged as a result of the sink holes. There was no contention by the Finleys that Teeter interfered with any underground bodies or streams of water flowing in known and defined or ascertainable channels or courses as opposed to percolating waters. Nor was there any contention by the Finleys that Teeter had acted in a negligent manner in the operation of its quarry, including the necessary pumping of water from it. All of the subsidence occurred entirely on the Finley land.

Teeter’s excavations did not cause any loss of lateral support of any of the Finley land immediately adjacent to the line of the quarry property. As already indicated, the trial court upon Teeter’s motion, and after considering trial memoranda of the parties, directed a verdict for Teeter at the end of the Finleys’ case because in its opinion the Finleys were not entitled to recover damages from Teeter as a matter of law. The trial court filed a well considered written opinion in denying the motion of the Finleys for a new trial, stating the reasons for its action. We agree with the conclusion of Chief Judge Macgill and will affirm the judgment for Teeter for costs. ⁴³² As the present case involves the use of subterranean water, we will now consider the law applicable to such waters.

Subterranean waters are generally considered to be of two distinct types: (1) underground streams and (2) percolating waters. To be classified as an underground stream, the water must flow in a definite and fixed channel whose existence and location is either known or may be ascertained from indications on the surface of the land or by other means without subsurface excavations to determine such existence and location. See Washington County Water Co. v. Garver, 91 Md. 398, 407-09 , 46 A. 979, 981 (1900). See also Clinchfield Coal Corp. v. Compton, 148 Va. 437, 447-48 , 139 S. E. 308, 311 , 55 A.L.R. 1376, 1381 (1927); Evans v. City of Seattle, 182 Wash. 450, 453-54 , 47 P. 2d 984, 985 (1935) ; 56 Am.

Jur. Waters § 108 at 591 (1945); 93 C.J.S. Waters § 86 at 761 (1956). Percolating waters, on the other hand, are those “which ooze, seep or filter through soil beneath the surface, without a defined channel, or in a course that is unknown and not discoverable from surface indications without excavation for that purpose. The fact that they may, in their underground course, at places come together so as to form veins or rivulets does not destroy their character as percolating waters.” Clinchfield Coal Corp. v. Compton, supra, 148 Va. at 446 , 139 S. E. at 311 , 55 A.L.R. at 1381 ; see also United Fuel Gas Co. v. Sawyers, 259 S.W.2d 466, 467 , 38 A.L.R.2d 1261, 1263-64 (Ky. 1953); Canada v. City of Shawnee, 179 Okla. 53, 54 , 64 P. 2d 694, 696 (1936); C &W Coal Corp. v. Salyer, 200 Va. 18, 22-23 , 104 S.E.2d 50, 53-54 (1958); 56 Am.

Jur. Waters § 111 at 593 (1945). Unless it can be shown that the “underground water flows-in a defined and known channel it will be presumed to be percolating water.” Clinchfield Coal Corp. v. Compton, supra, 148 Va. at 448 , 139 S. E. at 311-12 , 55 A.L.R. at 1381-82 . Accord, Western Maryland R. R. Co. v. Martin, 110 Md. 554, 566-67 , 73 A. 267, 272 (1909).

See generally McGowan v. U. S., 206 F. Supp. 439, 442 (D. Mont. 1962) ; Canada v. City of Shawnee, supra, 179 Okla. at 54 , 64 P. 2d at 696 ; 93 C.J.S. Waters § 87 at 762 (1956). While normally the use of underground streams is governed by the same law as applies to those waters ⁴³³ flowing in defined and fixed channels above the surface, see e.g.,. Sycamore Coal Co. v. Stanley, 292 Ky. 168 , 166 S.W.2d 293 (1942); McGowan v. U. S., supra, 206 F. Supp. at 442 ; see generally 93 C.J.S. Waters § 89 at 763 (1956) ; 56 Am. Jur.

Waters § 109 at 591 (1945), a separate and distinct body of law has developed governing the use of percolating waters. In view of the agreed statement of facts, already mentioned,, as well as the answers to interrogatories by the Finleys, together with the evidence in the lower court, it is clear that there has been no suggestion that the waters with which we are concerned are anything other than percolating. There are two basic lines of authority applicable to the use of percolating waters. The first is known as the English Rule, and was first firmly established in England by the decision in Acton v. Blundell, 12 Messon and Welsby’s Report 324, 152 Eng.

Rep. 1223 (1843). This case involved an action for damages by a landowner whose well had allegedly been made dry as a result of the activities of an adjoining landowner (the defendant) who in the normal operation of his mine drained away percolating water. Cowling, as counsel for the plaintiff, urged the Court to apply the maxim sic utere tuo ut alienum non laedas, but the Court held that since the water involved was. not a river or flowing stream, but percolating water, the landowner could apply it for any purpose he pleased. Lord Chief Justice Tindal stated, for the Court: “[W]e think the present case, for the reasons above given, is not to be governed by the law which applied to rivers and flowing streams, but that it rather falls within that principle, which gives to the owner of the soil all that lies beneath his surface; that the land immediately below is his property, whether it is solid rock, or porous ground, or venous earth, or part soil, part water; that the person who owns the surface may dig therein, and apply all that is there found to his own purposes at his free will and pleasure; and that if, in the exercise of such right, he intercepts or drains off the water collected from underground springs in his neighbour’s well, this inconvenience to his neighbour ⁴³⁴ falls within the description of damnum absque injuria, which cannot become the ground of an action.” (12 Messon and Welsby’s Report at 354, 152 Eng.

Rep. at 1235.) Thus, under the English Rule, the owner of the freehold ■was deemed to own all of the percolating waters beneath the .surface of the land as he owned the soil and minerals beneath the surface of the land and the air and sky above the surface—an .application of the maxim cujus est solum, ejus est usque ad ■coelum et ad inferos. The English Rule is sometimes referred to as the “Absolute Ownership Rule,” as the owner of the surface of the land had the absolute right to intercept underground percolating water before it left his .property for whatever pur■pose he pleased and without regard to the effect of such interception on the owner of neighboring land. Although there was possibly some encroachment on the concept of “absolute ownership” in Dickinson v. Grand Junction Canal (1852) 7 Ex. 282, 21 L.J.Ex. 241, the doctrine established in Acton v. Blundell was reaffirmed with full vigor in Chasemore v. Richards (1859) 7 H.L.C. 349, 29 L.J.Ex. 81 in which it was held that a landowner and mill owner had no right to the use of a stream or a well supplied by percolating water against an adjoining landowner whose extensive well operations caused the loss of such use and even though the plaintiff claimed a prescriptive right resulting from some 60 years of use and the defendant’s well operations were supplying water to the inhabitants of a large district and thus not merely serving the defendant’s land. The doctrine of “absolute ownership” was also reaffirmed in English v. Metropolitan Water Board [1907] 1 K. B. 588, 76 L.J.K.B. 361 where the plaintiff claimed that the defendant’s pumping station and water operations caused the subsoil water level to fall as a result of which the plaintiff’s pools were drained, rendering them worthless as spawning and fishing grounds and for the cultivation of watercress.

The defendant was pumping as much as 1,000,000 gallons of water a day. The King’s Bench, in deciding for the -defendant, concluded that the subsoil water level was substantially lowered as a result of the defendant’s operations but in ⁴³⁵ dicated that it was well established that the plaintiff had no right of “support” by water removed by the defendant on its own land. See also Popplewell v. Hodkinson, L.R. 4 Ex. 248 (1869), where the English Rule was applied to a case where there was subsidence damage to the plaintiff’s land. In Coulson & Forbes, Law of Waters, 221 (6th Ed. 1952), the English Rule is stated to be as follows : “fit is] now established on the highest authority that the owner of land containing underground water which percolates by undefined channels and flows to the land of a neighbor has the right to divert or appropriate the percolating water within his own land so as to deprive the neighbor of it; and his right is the same whatever his motive may be, whether bona fide to improve his own land, or maliciously to injure his neighbor, or to induce his neighbor to buy him out.” 1 The other line of authority is known as the American Rule, ⁴³⁶ and was developed in this country more recently, probably as a reaction to the harshness and abuses possible under the English Rule.

Under it, in order for a landowner, who, in the course of using his own land, obstructs, diverts, or removes percolating water to the injury of his neighbor, to escape liability, the activity or conduct causing such obstruction, diversion or removal must be a reasonable exercise of his proprietary right, i.e., such an exercise as may be reasonably necessary for some useful or beneficial purpose, generally relating to the land in which the waters are found. 2 See e. g., Gallerani v. U. S., 41 F. Supp. 293 (D. Mass. 1941) (U. S. gov’t held to same duty as a private individual); Sycamore Coal Co. v. Stanley, supra; N. M. Long & Co. v. Cannon-Papanikolas Constr. Co., 9 Utah 2d 307, 343 P. 2d 1100 (1959). The American Rule is based upon the concept that the surface owner’s right to obstruct, divert or remove the percolating waters under the surface of his land shall be exercised in such a way that will not unreasonably injure the exercise of a similar right by the owner of neighboring land—an application of the maxim sic utere tuo ut alienum non laedas. The American Rule is sometimes referred as the “Reasonable Use Rule” or the “Correlative Rights Rule.” 3 ⁴³⁷ There are three excellent and comprehensive annotations in the American Law Reports which consider the English and American decisions applying the two rules, viz., Subterranean and Percolating Waters; Springs; Wells, 55 A.L.R. 1385 to 1566 (1928), a supplement to that annotation, 109 A.L.R.2d 395 to 422 (1937) and Liability for Obstruction or Diversion of Subterranean Waters in Use of Land, 29 A.L.R.2d 1354 to 1379 (1953).

It appears from these annotations and from an analysis of the various cases that while many of the early American decisions followed the English Rule and that a slight majority of the jurisdictions in the United States may still follow this rule, the adoption of the American Rule appears to represent the trend in the American authorities. Our predecessors, in 1909, considered the two rules in Western Maryland R. R. Co. v. Martin, supra, which involved an action at law by a plaintiff landowner against the defendant railroad company which it was claimed had caused a stream to overflow and deposit mud in the plaintiff’s spring which, in turn, prevented the normal seepage of underground water into the spring, so that springs appeared in the plaintiff’s meadow thereby injuring it. The railroad company requested an instruction that the jury in considering damages should exclude from its consideration any injury from the appearance of springs or water on that part of the plaintiff’s land that was not actually submerged by the flooded stream. The trial court declined to grant the instruction.

On appeal, in reversing the judgment for the plaintiff, this Court held that the instruction should have been granted. Judge Schmucker, for the Court, stated: “The authorities generally agree that the presence under land of mere percolating water, not flowing in ⁴³⁸ known and well-defined channels, does not ordinarily affect the owners of the land with the same rights and duties as those incident to definite streams. (Citing cases.) “The decided weight of English and early American authorities supported the doctrine that percolating water was as much a part of the land in which it existed as the soil, stones and minerals therein and was the absolute property of the owner of the land, who might use or deal with it as he pleased without reference to the effect of his action upon adjacent or other lands. (Citing Acton v. Blundell, supra, and decisions from New York, New Jersey, California and Minnesota.) The recent American cases show a decided tendency to recede from the earlier view which accorded to the owner of land the unrestrained right of use and disposition of the percolating water contained in it, and to so far modify that doctrine as may be requisite to do substantial justice between the owners of adjacent lands whose peculiarities of location, climate, soil or products are such as to render the application of the earlier rule inequitable. * * * “Admitting that the correlative rights of adjacent landowners to the use of percolating waters should be exercised in