Grant v. Katson

Digges, J., delivered the opinion of the Court. The parties in this case are adjoining neighbors on a sloping portion of East-West Highway in Chevy Chase, Maryland. The appellants, Daniel Grant and his wife, live downhill on this natural watershed and have been at war for some years now with their uphill neighbors’ surface ¹¹³ water. Alleging that Mr. and Mrs. James Katson, their next door neighbors on the East above them, had caused an excessive concentration and diversion of the surface flow into their backyard, the Grants brought an action against the Katsons for continuing trespass, coupled with a prayer for an injunction, in the Circuit Court for Montgomery County.

The Grants emerged victorious from this suit on the question of liability, but either sensing a pyrrhic victory or seeking absolute vindication they now complain that the $100 damages awarded for the restoration of their waterlogged backyard were inadequate and that the trial judge, Miller, J., erred by not enjoining the continuing trespass caused by the water flow from and around their neighbor’s property. In lieu of the injunction Judge Miller awarded the Grants an additional $875 so they could install a new drainage system on their property and thus prevent future damage by diverting the objectionable surface flow. The Grants have abandoned any claim that they were entitled to punitive damages, but they insist that if we see fit to allow the injunction they should not lose all of the $875, as Judge Miller also intended that money to be used for restoring an older but clogged drain in another part of their yard. The Katsons have not challenged the finding of liability against them and claim that they stand ready, willing and able to pay the entire $975 judgment.

We shall uphold the $100 restoration damages, vacate the $875 portion of the award, and order that the requested injunction be issued. The unchallenged and rather simple facts of the case are that the Katsons increased and diverted the flow of surface water over their yard down onto the Grants’ by constructing a stone patio with an improper tilt and drainage system for it. In addition to this, the Katsons had placed a line of stones across their rear fence, thus creating a water baffle for their yard but causing the surface water from further uphill to flow in even greater quantities around their land and onto the Grants’ property. Compare Slaird v. Klewers, 260 Md. 2 , 271 A. 2d ¹¹⁴ 345 (1970).

These findings and the conclusion as to liability constitute the law of the case and undoubtedly have remained unchallenged on appeal in view of the settled law of this state on the responsibility of landowners for improperly concentrated and diverted surface flow. For a full discussion of the present law in Maryland on this topic see Judge Singley’s opinion for the Court in Baer v. Bd. of Co. Comm’rs., 255 Md. 163 , 257 A. 2d 201 (1969). We are therefore only concerned with the question of the appropriate relief from this condition. Looking first to the $100 damages, we note that the only testimony regarding the restoration of the backyard came from Mr. Gates, a landscape consultant and designer.

He testified that the cost for regrading and replacing the