Laird, Rock & Small, Inc. v. Harry T. Campbell & Sons

Markell, C. J., delivered the opinion of the Court. This is an appeal from a judgment for defendant in an action for damages to plaintiff’s house, while in the course of construction, alleged to have been caused or contributed to by defendant’s negligence in cutting and grading a road beside plaintiff’s property, whereby plaintiff’s land was flooded, and the west wall of the house collapsed, during a heavy rainstorm on the night of August 30-31, 1950. The case was tried before Judge Gontrum without a jury. Plaintiff’s house was (and is) at the southeast corner of St. Francis Eoad and Meredith’s Ford Eoad in Hampton Village, near Towson.

By contract with Hampton Village, Inc., the “developer”, defendant contracted to cut and grade Meredith’s Ford Eoad, a new road running south from St. Francis Eoad, an existing paved road which runs east and west. At the intersection of the ⁶²⁹ two roads St. Francis Road has a grade of about seven per cent to the east, Meredith’s Ford Road a grade of about five per cent to the north. The southeast corner of the intersection, or more strictly, a point about 200 feet south of the intersection, is the low point of an area of about six acres. At the time of the rainstorm defendant had removed the topsoil from Meredith’s Ford Road up the hill south from St. Francis Road.

The topsoil, of what had formerly been an open field, measurably absorbed rainfall and diminished the flow off as compared with the hard subsoil exposed by removal of the topsoil. This hard subsoil, during the rainstorm, increased the quantity and velocity of water that flowed off against the southwest corner of plaintiff’s house. Along the south side of St. Francis Road, before defendant began work, ran a bank one foot high, along the north side of which ran a gutter which carried down St. Francis Road and north of plaintiff’s property the flow of water down St. Francis Road — or down the south side of the crest of the road. In grading the intersection of the two roads defendant had cut the bank at the intersection, leaving the intersection level, without gutter or bank, thus opening a space as wide as Meredith’s Ford Road, through which the water that had flowed down St. Francis Road flowed southeast to the lowest point in the area and against the northwest corner of plaintiff’s house.

Plaintiff contends that defendant was negligent (1) in removing the topsoil from Meredith’s Ford Road without providing any storm water drainage, permanent or temporary and (2) in cutting the bank — and gutter — along St. Francis Road, at least without providing any substitute therefor. Judge Gontrum heard all the witnesses and viewed the locus. In so far as the judgment depends upon credibility of the witnesses, the case is preeminently one in which we ought not to set it aside on the evidence unless it was clearly erroneous. Plaintiff contends that the judgment should be reversed, not on any question ⁶³⁰ of credibility or on any pure question of fact but because the court applied the wrong rules of law to essentially undisputed facts.

We find in the testimony no issue of credibility, no conflict of facts and indeed no real conflict of opinions. The engineers for both parties agreed that (1) the removal of topsoil from Meredith’s Ford Road and (2) the cutting of the bank along St. Francis Road increased the amount of water thrown against plaintiff’s house. Counsel refrained from asking, and the engineers from answering, the question whether the wall would have collapsed in the absence of these two alleged instances of negligence. Defendant contends (1) that it was not guilty of any negligence, (2) that plaintiff was guilty of negligence and (3) that plaintiff’s damages were not caused by any negligence of defendant.

Judge Gontrum rejected the first contention, ignored the second, and sustained the third. Defendant says that the damage was due to the unusual and unexpected severity of the rain, that neither plaintiff nor defendant saw any need for special precautions, and that if any such need existed, it was plaintiff’s duty, at least as much as defendant’s, to take precautions. It is suggested that plaintiff might have done what it did do in rebuilding the wall, leave a block out of the wall for water to pass through. Plaintiff’s superintendent testified that they “don’t usually do that; it is very unusual for anything like that.” A “member” of plaintiff’s “firm” testified that a block can only be left out until you are ready to backfill.

Before the rain the backfill had been completed. We are not impressed by the defense of contributory negligence. We see no duty on the part of an adjoining property owner to make his wall as strong as a dam to resist, or as open as a sieve to permit, passage of water. If flooding is caused by a contractor’s negligence in grading a road, it is not the abutting owner’s duty to anticipate, and take precautions against, such negligence. ⁶³¹ Defendant relies on Eisenstein v. Annapolis, 177 Md. 222 , 9 A. 2d 224 , in which it was held that a munipality, which by constructing storm water drains has not diverted water from its usual flow or increased the area to be drained, is not liable for flooding of abutting property by infrequent and extraordinary rainfall.

That decision was carefully limited to a case in which no negligence was alleged or proved. Judge Gontrum in the course of his opinion said, “Before the heavy rainstorm the road surface of the proposed Meredith’s Ford