Mark Downs, Inc. v. McCormick Properties, Inc.

Wiener J., delivered the opinion of the Court. Appellants (hereafter referred to as complainants) own or lease property in the Cockeysville area of Baltimore County near the intersection of York Road and Beaver Run Lane. In September, 1979, their property was flooded and substantially damaged as an aftermath of tropical storm "David”; and, through this lawsuit, they seek to place at least part of the responsibility for that damage on the activities of appellees. The Circuit Court for Baltimore County, by sustaining appellees’ demurrers, and in one case a motion raising preliminary objection, decided that the storm was an "Act of God” and that none of the earthly defendants could be held liable for the destruction wrought by it.

This appeal followed. I. Procedural History The original bill of complaint named as defendants McCormick Properties, Inc. (McCormick), MacKenzie & Associates (MacKenzie, Inc.), Noxell Corporation (Noxell), Friends Lifetime Care Center (Friends), the county Board of Education (Board of Education), Baltimore County, and two county officials (Donald P. Hutchinson, County Executive, and John D. Seyffert, Director of Planning and Zoning). It alleged, in relevant part, that: (1) Complainants’ properties, acquired by them in 1973 or later, have an elevation of between 240 and 243 feet and are in a ten-year flood plain emanating from the confluence of Beaver Dam Run and Western Run, "just north and east of the property”; (2) Their properties had been inundated in 1933, 1956, and 1972, when flood waters crested at 251.4 feet, 252.9 feet, and 263.3 feet, respectively; (3) The 1972 flood, brought on by tropical storm "Agnes,” had been deemed an "Act of God”; ¹⁷⁴ (4) Despite these conditions, the county failed to implement certain flood control measures that had been recommended to it by consultants, and the county officials failed to stop development within the Beaver Dam and Western Run watersheds or to refrain from "issuing permits for construction of property” in those watersheds; and (5) The other defendants, who own property upstream from complainants, proceeded to develop their properties in various ways .which reduced the absorption capacity of the land and increased the storm water run-off. The net effect of all this, said complainants, was to increase the amount of storm water run-off across complainants’ property during tropical storm "David,” thereby increasing the depth of the flood water across complainants’ property.

They asked the court to enjoin the county officials from issuing any further construction permits for property within the two watersheds, to enjoin the defendant property owners "from any further construction or improvement of any type whatsoever” within the watersheds, and to require all defendants to pay, as damages, the $668,177 in losses suffered by complainants less the amount of any flood insurance benefits recovered by them. The two county officials demurred on the ground of governmental immunity. The county responded with a motion raising preliminary objection on that ground and on the further ground that complainants had failed to provide the notice of claim required under Courts article, § 5-306. The court ultimately accepted that response and (1) sustained the officials’ 1 demurrer without leave to amend, and (2) granted the county’s motion raising preliminary objection.

The other defendants also demurred for varying reasons. Their demurrers were sustained as well, but with leave to amend. Eventually, an amended, and then a second amended, bill of complaint were filed. Demurrers to the latter pleading were filed and sustained, without leave to amend.

The appeal now before us is from the orders (1) granting the county’s motion raising preliminary objection, filed in ¹⁷⁵ response to the original bill of complaint, and (2) sustaining, without leave to amend, the demurrers of the other defendants filed in response to the second amended complaint. 1 The second amended bill of complaint was directed against the upstream property owners previously named — McCormick, MacKenzie, Inc., Noxell, Friends, and the Board of Education — plus two new ones, Clark and Roland MacKenzie. It sought essentially the same relief, namely, an injunction against any further development by the defendant property owners and damages for losses incurred as the result of tropical storm "David.” With respect to the damage claim, it purported to set out three causes of action: trespass, negligence, and nuisance. Complainants again averred that their property is located in a ten-year flood plain created by the confluence of Beaver Dam Run and Western Run to the north and east, but they made no mention in this pleading of the prior flooding in 1933, 1956, and 1972. The elevation of their property was claimed in this new pleading to be eight to nine feet higher than had been averred in the original complaint.

With respect to McCormick, complainants alleged that: (1) it owned a large tract of industrial land east of Interstate 83 and south of Shawan Road, which is at a higher elevation than complainants’ property and which drains into the Beaver Dam and Western Run watersheds; (2) since 1971, McCormick filled and graded the land and constructed improvements on it, "thereby reducing the natural absorption capacity of the property, causing the discharge of surface water in a different manner than the usual and ordinary natural course of drainage, and artificially and materially increasing the velocity and amount of storm water run-off’; (3) the increased run-off into Beaver Dam Run and Western Run filled those streams beyond their natural capacity, causing them to overflow onto complainants’ land and thus add to the depth of the flood waters which ¹⁷⁶ inundated appellants’ land during tropical storm "David.” The crux of the complaint was not the actual flooding of their property, but rather that, by reason of McCormick’s development, the storm water backed up onto complainants’ property "at a greater depth than otherwise would have occurred.” They claimed damage to their property "[b]y reason of the increased height of flood waters attributable in part” to McCormick’s development activities. Essentially the same allegations were made as to the other defendants as well — that their property was within or adjacent to a flood plain and that they developed their property so as to reduce its natural absorption capacity which caused, sequentially, an increased run-off and discharge into one or both streams, a filling of the streams beyond their natural capacity, and an exacerbation of the flooding of complainants’ property during tropical storm "David” by adding to the depth of the flood waters. There were some minor variations in the allegations regarding the location of the defendants’ respective properties. Unlike the allegations concerning McCormick, the exact location of the other properties was not specified; they were, however, claimed to be "upstream and in close proximity to the Complainants’ property,” at a higher elevation, and within the Beaver Dam or Western Run watershed.

None of the defendants’ properties was alleged to be adjacent to that of complainants; the closest complainants came to that was a statement that the Board of Education property was "upstream and just west and north of Complainants’ property.” All three claims — trespass, negligence, and nuisance — were built upon these basic factual allegations, which were incorporated into each claim. The trespass action arose from the averment that, by reason of their development activities, the defendants "increased the run-off of surface water, silt, mud and debris from [their] property onto the Complainants’ property during the tropical storm 'David’....” The negligence action proceeded from the assertions that, in undertaking their ¹⁷⁷ respective development activities, the defendants had a duty to take reasonable precautions to prevent harm to appellants’ property "caused by the increase in surface water run-off which foreseeably accompanied the development of the land,” and that they violated that duty by failing to take "adequate and reasonable precautions.” In particular, appellants claimed that the defendants "failed to provide adequate storm water management to control the increased volume and velocity of surface water run-off caused by the development of [their] property.” Finally, in the nuisance action appellants averred that the increased run-off attributable to the defendants’ development activities "caused and continues to cause flooding, deep mud and stagnation on the Complainants’ property, which constitutes a health menace and otherwise damages the Complainants’ property.” The demurrers filed in response to this second amended complaint asserted in general that it failed to establish the breach of any duty owed to complainants that was the proximate cause of their injury. They claimed (1) with respect to the trespass action, a failure to allege that the defendants or "a person, object or element in [their] control ... made an unauthorized entry onto the Complainants’ land”; (2) as to the negligence action, that the facts alleged would not establish that the defendants’ activities were "unreasonable or in contravention of any duty owed to Complainants” or that such activities were the proximate cause of Complainants’ injuries; and (3) with respect to the alleged nuisance, that no facts were set forth which would demonstrate that the defendants’ activities "were such as to result in unreasonable storm water run-off’ and that the facts alleged establish that defendants’ activities "could not have been the proximate cause of the Complainants’ injuries.” In sustaining the demurrers, the court noted the 1972 flooding that resulted from "Agnes,” and by referring to a map supplied by one of the defendants, concluded that the defendants’ properties "are a substantial distance from [complainants’] property.” It also found as a matter of law, if not ¹⁷⁸ fact, that tropical storm "David” (and the damage wrought by it) was an "Act of God,” and thus, that "the essential damages were not proximately caused by action of the defendants but were the direct and proximate result of an Act of God.” Referring to Laird, Rock & Small, Inc. v. Harry T. Campbell & Sons, 200 Md. 627 (1952), the court noted that, although the extra run-off from defendants’ development may have added somewhat to the water in Western Run, given the "devastating and overwhelming hurricane, such as David,” that would fall "within the de minimis doctrine.” Although recognizing that the trespass and negligence actions are traditionally law rather than equity actions, the court decided the issue not on that basis, but rather on the basis that the allegations themselves were insufficient to state causes of action. In that regard, it stated that "there being no allegation that the respondent’s [sic] properties were used unreasonably, there is nothing to indicate in this case that the injury resulting from hurricane David would have been significantly added to by any increase of run off attributable to merely developing a piece of ground.

In this case there was no direct channelization alleged.” The premise underlying the court’s ultimate ruling was that "[t]he Complainants are trying to extend the liability of an upper land owner to a degree that is neither reasonable or equitable.” II. Issues Raised by Complainants In this appeal, complainants present the following issues: "I. Whether the Court erred by sustaining the upper landowners’ demurrers to the Second Amended Bill of Complaint without leave to amend? A. Whether the law of surface water gives a lower landowner a cause of action where the ¹⁷⁹ development of upper land caused an increase in flow of surface water into a stream, causing the stream to overflow its banks and flood the lower land? B. Whether an upper landowner may drain so much surface water into a stream that the natural capacity of the stream is exceeded to the injury of a lower landowner?

C. Whether, for an invasion of an interest in land by surface water, recovery can be sought in equity, or in an action at law for negligence, nuisance or trespass? D. Whether the defense of an Act of God is available where an intervening human agency contributes to cause the damage complained of, and where the injury could have been avoided by precautions?

II

Whether private property has been taken, within the meaning of the Maryland Constitution, by developing land for the Board of Education of Baltimore County that caused an increase in the flooding of lower land?” III. Analysis A. Taking by Board of Education We shall address the last issue raised by complainants first. The simple answer to it is that it was not raised in the second amended bill of complaint, and therefore was not considered by the lower court. The only complaints made against the Board of Education were that its development activities constituted a trespass, negligence and a nuisance; there was no assertion that its actions amounted to a constitutional "taking” of appellant’s property.

We shall therefore not consider this belated charge on appeal. Maryland Rule 1085. 2 ¹⁸⁰ B. Dismissal of Baltimore County As noted, Baltimore County was dismissed as a defendant, essentially on the ground of governmental immunity, upon its motion raising preliminary objection. Although in the section of their brief entitled "Statement of the Case,” appellants advise us that, along with the court’s rulings on the various demurrers, they are appealing the order dismissing the county, they do not include in the "Questions Presented” or in their argument any complaint about or further mention of that aspect of the case. They do not, in short, tell us why they think the court erred in its ruling on the county’s motion.

Cf. footnote 2, supra. Their argument is directed entirely at whether a cause of action was stated against the various upstream property owners, and no reason is cited to us for reversing the court’s decision as to the county’s defense of governmental immunity. Accordingly, we shall not address or disturb that decision. Maryland Rule 1031; Jacober v. High Hill Realty, Inc., 22 Md.App. 115 , cert. den. 272 Md. 743 (1974); Federal Land Bank of Baltimore, Inc. v. Esham, 43 Md.App. 446, 457-58 (1979), and cases cited therein.

See, moreover, Irvine v. Montgomery County, 239 Md. 113 (1965); Spriggs v. Levitt & Sons, Inc., 267 Md. 679 (1973). C. Actions Against Other Property Owners The remaining issues raised by complainants must be addressed in the context of their procedural setting; namely, whether the court erred in disposing of the matter on demurrer. In judging that question, we are obliged (1) to consider ¹⁸¹ only the allegations contained in the second amended complaint, and not any, evidence or averments extraneous thereto, and (2) to assume the truth of all relevant facts well pleaded in that complaint, as well as all inferences which may reasonably be drawn from those facts. Zion Evangelical Lutheran Church of the United Church of Christ v. State Highway Administration, 276 Md. 630 (1976); Hall v. Barlow Corporation, 255 Md. 28, 42 (1969), appeal following remand 260 Md. 327 (1971); Schwartz v. Merchants Mortgage Co., 272 Md. 305 (1974).

Those constraints require that we disregard the consultants’ reports and maps included in the record extract and referred to in appellees’ brief, as well as those allegations made in the earlier bills of complaint but not repeated in the second amended complaint presently before us. 3 Complainants’ actions of trespass, negligence, and nuisance, though distinct from one another in their constituent elements, all derive in this instance from the correlative rights (and obligations) of neighboring landowners with respect to the natural flow of surface water. The basic law in that regard is fairly clear; the problems lie with its application. Because it displaces valuable land and has great destructive potential, surface water has often been regarded as a common enemy by property owners. No one wants it, but someone must have it.

This has produced a raft of lawsuits over the years, usually — at least in the early years — arising from attempts by the owners of lower lying property to stem or reverse the natural flow of the water by means of embankments or other artificial changes to their land. In that context — the extent to which a lower property owner may act to reverse or neutralize the natural ¹⁸² gravitational flow — two schools of thought developed. One, denoted the "common law” rule, holds that "the ordinary right of an owner of land to make any use whatever of his land either by erections thereon or changes in the surface, is regarded as independent of the effect which such erections or changes may have in causing water which naturally flows off on his land to collect or flow on other land.” Whitman v. Forney, 181 Md. 652, 656-57 (1943), quoting from 3 Tiffany on Real Property, § 743 (3d ed. 1939). The other rule, known as the "civil law” rule, holds that "land on which surface water naturally flows from another tenement is regarded as subject to a servitude of