Moy v. Bell

Lowe, J., delivered the opinion of the Court. In Goldstein v. Potomac Elec. Power Co., 285 Md. 673 (1979), the United States Court of Appeals for the Fourth Circuit asked the Maryland Court of Appeals to explain the effect of the statute of limitations (Md. Code, Cts. & Jud. Proc.

Art., § 5-101) upon a suit for damages caused by a nuisance. An appeal from the Circuit Court for Anne Arundel County asks us to explain that explanation. A number of building lots in a subdivision in Anne Arundel County were established upon very low, poorly drained land. Since 1966 appellant has owned one of these sites which had been improved with a house that she has occupied since 1968.

Adjacent lots were subsequently owned by appellees Ralph and Virginia Bell (Bell) and John and Mary Jane Hardwick (Hardwick). In late 1973 and early 1974 the Bells built a house upon their excavated site. A year later the Hardwicks did the same. According to appellant, that excavation of appellees’ lots soon brought on her problems.

"In late 1973 and early 1974, surface water began to flood Appellant’s lots. Water flowed over the septic drain fields in Appellant’s yard, and she began to experience problems with her septic system. Initially the toilet would not flush. She found that emptying the tank seemed to remedy the problem.

However, as the ground later became more and more saturated with water, fluids from the septic began to back up through the toilet and bathtub, forcing Appellant to have the tank emptied more frequently. A few years [sic] later, during a period in 1974 when the ground was completely saturated, the septic ceased to operate altogether ³⁶⁶ and Appellant and her family had to use facilities in other homes. At same time, water also flowed under the house, which sat above ground on masonary [sic] piers. Water flowed under the house directly from [the Bell] lots . . .; after the Hardwicks altered their land, [an adjoining vacant] lot .. . began to collect water during the rainy season, and when it reached saturation, it spilled over onto Appellant’s land and flowed under her house and onto the front yard.

At times water collected to a depth of 7 Vz inches next to Appellant’s front door step. Recurrent flooding under Appellant’s house caused the wood structure to rot. To keep the water off of her property so that she could use her backyard, Appellant filled in portions of her backyard. This reduced the flow of water onto the rear of her lots.

Nevertheless all four lots — 52 through 55 — collectively continue to obstruct the natural flow of surface water, causing the water to run to the east and north side of Appellant’s lots. In December 1976, the Bells sold lots 54 and 55 to John Dixon, Appellee. Since Dixon’s ownership of the land, the land continues to obstruct the natural flow of surface water and cause water buildup on Appellant’s land.” Appellant first sued the Bells on September 26, 1977, subsequently joining the Hardwicks March 9, 1978 and on May 3, 1978 joined the Dixons. Essentially, the declaration (as amended five times) sought damages for, and injunctive relief from, the injurious results of wrongful diversions of surface water.

Dixon’s demurrer to the final damages count was sustained without leave to amend as to him and, at the conclusion of the trial, Dixon was dismissed when appellant elected not to pursue an injunction but "limited the relief requested to damages”, conceding that in light of that election, "... I have no further claim against [D]ixon.” 1 ³⁶⁷ The trial judge then heard arguments of counsel on the motions to dismiss by appellees Bell and Hardwick, after which he granted them on the ground that the statute of limitations was a bar to recovery. He added: ". . . I think that even if it were not a bar, that the — the damages that have been alleged have not really been shown to be the direct result of— of any surface water flowing from the Bell or Hardwick property, anymore than there’s surface flow going the other way.

I think there’s a low point on the property line, by the testimony of the engineer, and that this water comes from three directions to get there, and it’s all going to have to go down somehow or other by cooperation of the various property owners in there to get it out of the center of the property and out to a street in some direction. It’s obviously going to cost some money, but it’s going to cause a problem until somebody does that as a cooperative effect [sic]. Because I don’t think it’s a practical thing to try to take right angle turns at property lines and have the very little percentage of decline that would be possible in this relatively flat area. So I think you, from the testimony, it appears that the best solution is to go out the middle line out to the intersection of the street, even though that might entail getting an easement from somebody.

But there’s only one other lot down, that goes all the way out to Cedar Road. I don’t know who owns that — 42 — but that can get all the way out that way. But I don’t see that this whole problem can be solved without a cooperative effort. But I will grant the motion of— the motion of the defendant to dismiss on the grounds that the statute of limitations is a bar.” It seems the judge was not convinced that a nuisance was caused by appellees but decided even if it was, appellant had waited too long to seek redress. ³⁶⁸ Appellant’s relatively short question on appeal, "[wjhether seasonal surface water flooding of Appellant’s land caused by raising adjoining land to construct private home sites, was a permanent or temporary nuisance?”, raises interesting tangential legal issues in the light of Goldstein, supra, which limits, but does not resolve, issues necessary to the answer of appellant’s question.

It would appear that no purpose would be served by this Court resolving those issues since the trial judge, who was the factfinder, had already factually decided the case. Appellees contend that even if the limitations holding was not correct, the error is harmless in light of the factual findings of the trial judge. Since our conclusion, after addressing the legal issue, will bring us to a comparable result, it is unfortunate that we cannot arrive more quickly by taking the factual path. The Court of Appeals has made it clear, however, that we may not.

Our system of jurisprudence, much like our language, is affected more by exceptions than by rules. Upon deciding a motion to dismiss under Md. Rule 535, the trial judge is compelled to view the evidence solely for its legal sufficiency in the light most favorable to the plaintiff just as he would in a jury case on motion for directed verdict. Isen v. Phoenix Assurance Co., 259 Md. 564, 571 (1970). He may not weigh the testimony as though he was acting in his role as the trier of fact, Hooton v. Kenneth B. Mumaw P. & H. Co., 271 Md. 565, 572 (1974).

However, if the defendants rest their case without putting on any evidence, immediately after denying the motion to dismiss, the judge as factfinder may weigh the evidence to find which side preponderates, and may draw whatever inference he chooses, whomever it favors, so long as it is legitimately perceived. There is, however, an exception, even upon motion to dismiss. If there is a legal question raised, which would end it if factually found to apply in the plaintiffs own case, the ³⁶⁹ judge, while still in his judicial capacity, is charged with deciding the appropriate facts necessary to deciding that legal issue. Here, when the motion to dismiss was offered raising the statute of limitations as a bar, the trial judge sat in both seats simultaneously.

Our review on appeal then must carefully differentiate the purposes for which the facts were found. Because the ultimate issue to be decided on the motion was the applicability of the statute of limitations, we may not set aside the facts found by the trial judge in relation thereto unless he was clearly in error. Md. Rule 1086. Appellant has focused her entire appeal to convince us that the nuisance causing the damage was temporary (despite having labelled it permanent in her first amended declaration) because "where the nuisance sued upon is only temporary, successive actions may be brought for damages for each invasion of the plaintiffs land until the period of prescription has elapsed, but recovery may only be had for damages actually sustained, other than permanent reduction in the market value of the property, within three years of the filing of the action.” Goldstein, supra at 690, n. 4 .

See also Aberdeen v. Bradford, 94 Md. 670 (1902). Perhaps because the question of permanency for some purpose unrelated to limitations is essentially a factual one, appellant argued upon the premise that our standard of review of the court’s factual conclusion for limitations purposes was the same as upon reviewing a