Green v. Washington Suburban Sanitary Commission

Digges, J., delivered the opinion of the Court. The fracas that resulted from Harry Green’s attempt to prevent the Washington Suburban Sanitary Commission from laying a water line along the roadway in front of his home in Damascus, Montgomery County, Maryland should not serve as an example of how to combat the encroachments of state and county government into the far reaches of suburbia. Had this been a less volatile situation we might only have been faced with the relatively uncomplicated question of the widening of the public’s right-of-way over a roadbed by adverse possession; instead we must review this question in the context of a free-for-all which resulted in eleven days of trial against seven defendants over sixty-nine tort claims, including assault, battery, false imprisonment, malicious prosecution, trespass quare clausum fregit, trespass de bonis asportatis, and an alleged conspiracy to commit all these offenses against the persons and property of the appellants and plaintiffs below, Mr. and Mrs. Harry Green. At a jury trial in the Circuit Court for Montgomery County before Judge Joseph M. Mathias, the Greens, along with a host of witnesses for the defendants, reconstructed the events leading up to this case: In early 1967 Mr. Green became aware that the Washington Suburban Sanitary Commission was planning to lay a water line along Maryland Route 122, or Bethesda Church Road.

A portion of Route 122 ran through Mr. Green’s property, with his home and shop on the north side of the road and a storage ²⁰⁹ area for Ms well digging equipment and trucks on the south. No one contests that Mr. Green held title to the underlying fee below the road. The dispute at the core of this case was over the width of the State’s right-of-way for a public highway. The section of the road in question had first been paved with a strip of concrete which varied in width from fifteen to eighteen feet as it passed through the Greens’ property.

This was done in 1924. At that time the State neglected to obtain a deed for its customary forty-foot right-of-way from the prior owners, although it had obtained deeds from the adjoining owners. Mr. Green contended that this omission left him with complete title to the land up to the very edge of the concrete from the day he acquired the property in 1935 to the time of this case in 1967. The State introduced evidence to demonstrate that during the intervening forty-three years, from 1924 to 1967, it had nevertheless maintained what it considered to be its customary forty-foot right-of-way over this property.

There was also evidence that the public, primarily by pedestrian traffic, had continuously traveled over this broader right-of-way. Both of these activities occurred regularly without objection from the Greens or their predecessor in title. Finally, the State had widened the concrete portion of the road in 1957 with macadam strips, again without objection from the Greens. Unaware that the State may have acquired title to the broader right-of-way by adverse possession, Mr. Green objected when he learned that the Sanitary Commission proposed to lay a water pipe along the north edge of the road, through what he considered to be his front yard.

He retained a lawyer to notify the Commission of his objections and to offer, free of charge, the use of his property on the south side of the road for the pipeline. The record is unclear as to why he preferred the south to the north side but it appears that the genesis of this predilection may have been a concern over two large oak trees very close to the north edge of the road. But be that as it may, whether it was ecology or a desire to pro ²¹⁰ tect one’s property against governmental encroachment, Mr. Green had his lawyer adamantly inform the Sanitary Commission in a letter of March 28, 1967 that he would “not voluntarily give an easement on the north side of Bethesda Church Road” nor would he “permit a pipe to be laid, or any construction work done by the commission within the boundary of his property until this matter is resolved.” To this unequivocal statement of position neither client nor attorney received a reply. Instead Mr. Green noticed surveyors staking out the proposed trenchline along Route 122.

Then pipe and heavy equipment were placed along the route, and digging, further up the road, began. By the afternoon of Friday, April 28, it became apparent that the trench was making an obvious bee line for the north side of his property and that the workmen had no intention of zigzagging across the road to the south side. On Monday, May 1, the digging of the trench in front of his home would have begun had not Mr. Green taken the simple expedient of parking his entire fleet of trucks along the north side of the road directly in its path. This blockade included “one small drill, one large one next to it, and a flatbed ’54 truck and one large cable rig drill.” One of the vehicles making up the barricade weighed “about twenty-five tons,” according to Mr. Green, who also testified that he parked the trucks “just off the pavement. . . .

Off the edge of the macadamized surface on my property. It might have been in the road but I would still have been on my property, so I parked them right on the edge of the road, just off the edge of the road on my property.” Mr. Green then slipped away from the scene of battle, leaving his wife behind to guard the property. He was not to return until one o’clock that afternoon. When the defendant Laurence Smith, the foreman of the work crew,- arrived at the job site that morning he discovered, much to his consternation, this imposing obstacle to further digging.

Unperturbed, however, he called his Superior' at the Marbro Company for direction. The Marbro Company, one of the defendants below, had been ²¹¹ awarded this construction contract by the Sanitary Commission. His superior advised him to call the state police for assistance and, if necessary, to “leap frog” over the blocked portion of the right-of-way so as not to delay further digging. In response to Smith’s call, Maryland State Trooper David Rooney, another defendant, arrived.

After consulting with Smith and a Sanitary Commission inspector, defendant Errol Jeffcoat, he told Mrs. Green to remove the trucks or he would have them towed away. She refused. After morning long consultations over maintenance plats with officials of the State Roads Commission, Rooney marked off the north half of the forty-foot right-of-way by measuring out twenty feet from the center of the concrete road. Having determined that Green’s equipment was illegally blocking the right-of-way, he called for a tow truck owned by the defendant Carlton Bohrer, trading as the Walnut Hill Shell Station, and operated by yet another defendant, Claude Pickett, Jr. At this juncture Mr. Green returned.

Although there are some minor disputes over the details, especially with regard to the assault on Mrs. Green, the parties accept the Greens’ version of what next occurred. Rather than paraphrasing, we quote from Mr. Green’s narration of the events: [Trooper Rooney] came over and asked me, he said, “Are you going to move this equipment? I told him, “No, it is parked on my property.” I told him, “You have no right to move it.” Q. [By Mr. Barbee] What did he say to that? A. He said, “If you don’t move it we are going to tow them away.” I said, “You can’t tow them away because you don’t have any legal authority.” He said they were going to tow them.

Q. On whose property were these vehicles parked ? A. On mine. ❖ ❖ Q. Mr. Green, what transpired thereafter following this conversation you had with the ²¹² trooper? Tell us in your own words. A. What I did?

Q. Yes, sir. A. The conversation with the trooper, of course, I hadn’t read the day’s news so I went in the house and got one of the newspapers, crawled in the back of the truck and sat and was reading it for twenty or thirty minutes and here came a tow truck. Q. Who drove the tow truck ? A. That I wouldn’t know. [It was Mr. Pickett.] Q. Go ahead.

A. So the trooper instructed the tow man to pick up the small drill which was parked, the first vehicle coming down from Damascus, or the one on the east end. I am right particular about my equipment, so I went out there and jumped in it and cranked it up and the trooper, he got pretty hot with me, he came in the door after me and said I couldn’t move it. He was going to tow it away. I said that he had no business touching it.

So I backed up the truck a little further from the pavement. They say I hit a tree, which I didn’t because my derrick would be damaged. They said I recklessly drove. I had to gun the truck pretty heavy to get a cold engine started up to move four or five times.

I backed up twenty or thirty feet from the road. He told the tow wagon man to get the blue truck. I crawled in the truck. I looked around for the keys.

There were no keys. That is when I found out my wife had gotten the keys. I told one of my men who came in after that to go and get the keys in the'house. We had a pile of them in the house.

He grabbed one of them and came back and I seen he had the wrong ones. I told him to get the other ones. In the procedure of him getting this ²¹³ key the tow wagon backed up katty-komered on my property, and in order to back into the front of it. Of course, he pulled up the hood.

Q. Who raised the hood ? A. He raised the hood and pulled the wire. He put the hood back down. I raised the hood and put the wire back in and got back in the truck.

He raised the hood again and pulled it back in the second time. I got out of the truck and put it back in and started back, but didn’t get back from the front. He raised the hood and pulled the wire the third time. The second time that I went to pull the wire he pulled me back a little bit, but I didn’t pay any attention to it.

The third time when I raised the hood and put the wire in and went to step back, that is when the trooper grasped me and tried to put a hammerlock on me. I snatched away from him and I stepped back a little way from him. He reached behind him and, with something. I didn’t know what it was until I saw it was a blackjack.

I was ducking, and he caught me first on one side of the head and once on the other side. Then he hit me in the nose one solid lick and one solid lick on my left right side of the back. It was right near the ear. . . . My knees buckled up under me.

I started down and I was ascared to run. I figured he would shoot me if I ran. I was only about thirty feet from the house door and about twenty-five feet from the shop door and if I would have run I was afraid he would shoot me. There wasn’t anything else to do but stand there and take it.

I had to run or try to defend myself. I reached up and grabbed him. I took a handful of shirt, tie and everything. I put my left arm around his neck and I gave him a good gentle hug.

He started hollering, “Somebody help me.” ²¹⁴ We kept backing up about ten or fifteen feet. While he was blackjacking me, my wife came out there and said for him not to do that. He swung at her with the blackjack. He caught her on the arm, a right good lick.

I don’t know whether he kicked her on the foot or not. She had a bad place on the ankle. We went down and I am still holding him while he was down. The foreman that was on the road. . .

Q. What is his name? A. Smith. He says I am going to help him. They said, “No, you stay out of it.” I remember that. * * * Q. What did he do ?

A. He came over while we were down there. He came over there and pulled the cop’s gun and threatened to blow my brains out. Q. What did he say? A. He says, “You let him up or I will blow your damn head off, blow your brains out.” Q. Where was the gun?

A. The gun was in his hand against my head. Q. What happened then? A. I never let loose. I said it would be the last person he ever killed.

I never let him loose. About thát time, I think two more State Troopers came. I think there were two more. They snatched us apart and pulled us up, two of them.

They tried to put the handcuffs on me and they couldn’t make it. The third one got up and put a hold on me. They had me down on my back. Then one stood on my neck and one stood in the middle of my back and jumped up and down while the third one put handcuffs on me.

The rest is anticlimax. During the course of the scuffle Mr. Pickett hooked up his tow truck and drove off with the flatbed track The police took Mr. Green into cus ²¹⁵ tody, booked him and took his photograph and fingerprints, but at a later trial in the Montgomery County People’s Court he was acquitted of the charges of disorderly conduct and assault and battery. Mr. and Mrs. Green brought suit in the Montgomery County Circuit Court against all of the named participants, and they have now appealed, with the exception of a judgment in the amount of $200.00 against Officer Rooney for assault and battery, from generally unfavorable verdicts. They did obtain a judgment against the foreman, Mr. Smith, for nominal damages ($.01) for his use of the gun to stop the fight.

But they now question an instruction in this