Hancock v. Stull

Markell, J., delivered the opinion of the Court. This is an appeal from an order dated May 17, 1951, dismissing a bill. A petition for a rehearing was filed on June 4, 1951 and denied on August 28, 1951. Plaintiffs also filed a petition praying an order “deferring the ⁴³⁷ enrollment of the decree and extending the time for the filing of an appeal.” On June 12, 1951 an order was signed which provides that pending consideration and hearing on the petition for rehearing the decree of May 17, 1951 “shall not be enrolled” and that plaintiffs “shall have thirty (30) days from the date of the ruling upon the petition for a rehearing to file an appeal to the Court of Appeals”.

Plaintiffs filed on August 28, 1951 an appeal from the order overruling the petition for rehearing and on August 29, 1951 an appeal from the decree dismissing the bill “as well as” from the denial of the petition for rehearing. The appeal from denial of a rehearing must be dismissed. Such an order is discretionary and is not appealable in the absence of abuse of discretion. Jacobs v. Bealmear, 41 Md. 484 ; Bailey v. Bailey, 186 Md. 76, 80-81 , 46 A. 2d 275 .

Nor does the filing of a petition for a rehearing suspend the operation of a decree or order unless a special order has been passed, before it becomes enrolled, suspending it. Jacobs v. Bealmear, supra, 41 Md. 486 ; Bailey v. Bailey, supra. Neither this court nor the lower court can order that a decree shall not be enrolled — unless it can bid the sun stand still and can halt the passage of time. Nor can either court extend the time for appeal.

The lower court can, however, suspend the operation of a decree or order. In Bennett v. Bennett, 5 Gill 463, 466-467 , passage of an order nisi for annulling a decree was held to suspend the decree. With considerable doubt and hesitation we have concluded that the order of June 12, 1951, which expressly purports to do two things that no court has power to do, also shows an intention to suspend the operation of the decree or order of May 17, 1951 and has the effect of doing so. As the decree or order of May 17, 1951 was thus suspended from June 12, 1951 to August 28, 1951, the appeal on August 29, 1951 was taken within thirty days.

This is a suit to enjoin interference “with the natural drainage of surface water” and specifically to require ⁴³⁸ removal of a wall, ninety feet long and eighteen inches high, erected by defendants six inches from the boundary line between plaintiffs’ and defendants’ properties in Chevy Chase. These adjoining residence properties, plaintiffs’ to the east, defendants’ to the west, front on the south side of Grafton Street, between Cedar Parkway to the east and Wisconsin Avenue to the west. At the rear, to the south, the Grafton Street lots abut on the rear of lots fronting on Oliver Street, parallel to Grafton Street. On Grafton Street there are eight houses between plaintiffs’ house and Cedar Parkway.

The natural flow of surface water is generally from the south and east to the north and west, from Oliver Street to Grafton and from Cedar Parkway to Wisconsin Avenue. The preponderance of water seems to be from the east to the west. When it rains, there is a stream fifteen to eighteen feet wide, in the center part seven inches deep, flowing across the back of plaintiffs’ lot and his neighbors’ on the east. This water is augmented by the flow from Oliver Street.

Before defendants built their wall, their neighbor on the west, a Mr. Leonard, built a wall between his property and defendants’. Defendants’ response to this move was to build his wall and urge plaintiffs to do likewise. Plaintiffs would not do so. If plaintiffs had been willing, a wall between their property and their neighbor’s on the east would have done the same wrong and damage to their neighbor as defendants’ wall does to plaintiffs.

There are no such walls between plaintiffs’ property and Cedar Parkway. The obvious effect and intent of erecting defendants’ wall was to change the natural flow of water from east to west across the back of the Grafton Street properties to flow from south to north to Grafton Street. Water is literally dammed up on plaintiffs’ property, and it is said, sometimes overflows the wall. From the argument, and from Judge Prescott’s opinion, there seems to be no serious question that the erection and maintenance of defendants’ wall is an invasion of plaintiffs’ legal rights.

It is unnecessary to quote or state the controlling legal ⁴³⁹