Hancock v. Stull

Hammond, J., delivered the opinion of the Court. The decision in this appeal should ring down the last act curtain in a drama of quarrelling neighbors. The actors who were here in the first act, reviewed in Hancock v. Stull, 199 Md. 434 , appear now in the same roles. The setting of the drama, revealed by the opinion in the prior appeal, is that the appellants are the owners of a lot of ground in Chevy Chase immediately to the east of, and higher than the lot-of the appellee.

The natural slope of the appellants’ property is from south to north and from east to west. The appellants built their house towards the front, or northern, part of the whole lot and graded up around it. As a result a gully or ditch was created about half-way between the southern and-northern boundaries, running from east to west and channelling the flow of surface water onto the lot of the appellee to the west. The appellee built a concrete wall ninety feet long and eighteen inches high all'along ¹¹⁹ the common boundary line of the two lots.

This caused the appellants to bring a bill in equity to enjoin interference “with the natural drainage of surface water” and specifically to require removal of the wall. The chancellor denied all relief on a finding that the appellants were at fault in artificially changing the natural flow of the surface water, so as to channel it onto the land of their neighbor. This court reversed the action of the chancellor and remanded the case, saying at page 440 of 199 Md.: “If plaintiffs have done wrong, the Court should decided what the wrong is and what is the remedy and should not deny plaintiffs all relief, but should condition appropriate relief to plaintiffs (including removal of the wall) upon appropriate rectification by plaintiffs of their own wrongdoing.” This direction to the trial court mirrored succinctly the holding of the cases cited in the opinion, which lay down the Maryland rule and its qualifications. The rule is that the owners of land are entitled to have surface water flow naturally over the land of the lower landowner and the lower owner cannot obstruct the running of the water from the higher land onto his own.

Whitman v. Forney, 181 Md. 652 . Pertinent qualifications are that the upper owner has no right to discharge water into an artificial channel, or in a different manner than the usual and ordinary natural course of drainage, or put upon the lower landowner water which would not have flowed there if the natural drainage conditions had not been disturbed. If water is unlawfully forced on the lower owner, he is entitled to protect his property from the unwarranted flow. Biberman v. Funkhouser, 190 Md. 424, 429 .

In cases where a strict application of the general rule would result in hardship: “Courts have sometimes adopted what might be called a ‘reasonableness of use' rule. That rule is based upon the facts in a particular case and is peculiarly appropriate for an equity court to follow.” Bishop v. Richard, 193 Md. 6 . ¹²⁰ The appellee, after the remand, filed a cross-bill alleging the creation of the gully or ditch by the appellants and its effect in channelling water onto her land. She produced two witnesses who had long years of experience in construction work and in the drainage of