Potter v. Schafer

Marbury, J., delivered the opinion of the Court. The appellees, Paul W. Schafer and Elizabeth Carol Schafer, husband and wife, in June 1961, filed a bill of complaint in the Circuit Court for Montgomery County, Maryland, which alleged in substance that the appellants, Lloyd A. Potter and wife, and John L. Matthews and wife, had (1) violated a building restriction line, and (2) violated an alleged implied easement for a portion of a sewage disposal system. As the result of the trial, which was held on January 16 and 17, 1962, the opinion and the decree of the trial court found (1) that the building restriction line had not been violated, but concluded (2) that appellants “did damage and interfere with the complainants’ septic system.” In connection with the latter finding the court ordered the appellants to pay $1445 to the appellees, that amount having been found to be the cost of connection to the public sewer which was available to the premises involved. This appeal is by the appellants from the adverse portion of that decree.

There was no cross appeal by the appellees, the complainants below. The appellants were builders. In September, 1958 they acquired approximately three acres of land along MacArthur Boulevard in Montgomery County, for the purpose of a planned subdivision and house construction. On the land was a large residence, constructed around 1890, which was referred to in the testimony as “the castle.” Between the time of the acquisition of the three acre tract and about September, 1959, the appellants did repair and redecorating work on the castle, and on one occasion had a party there which included approximately one hundred guests.

During the course of those activities the plumbing in the castle was utilized and appeared to function adequately. Around June, 1959 the appellees sought out the appellants to inquire about purchasing the castle and, after protracted negotiations, a written contract was executed by the parties on ²⁶⁴ December 10, 1959. The contract provided that the castle was sold and accepted “as is” and specified a lot carved from the acreage to accommodate it, the rest of the land being left for use in the planned subdivision. Appellees occupied the castle in March, 1960.

At the time of the sale and occupation the sewerage system serving the castle consisted of a septic system with septic fields that extended over the land retained by the appellants. From the testimony there appeared to have been no complaint as to the sewerage system prior to the purchase of the house by the appellees. Though appellants denied it, there was testimony that in the winter of I9601 appellants and appellees inspected the ground where a new house was to be built on appellants’ retained land, and the appellants indicated a thorough knowledge of the septic system. Judge Shure in his opinion in the lower court relied on the appellees’ version of what transpired during the inspection.

There was a conflict as to the actual time, but some time after November, 1960, when appellants began to excavate for a new house on their retained land, sewage began to appear on the surface of appellees’ land downhill from the castle toward MacArthur Boulevard. The sewerage system had worked satisfactorily up to this time. It was conceded that a bulldozer, during the excavation, had broken one of the septic lines. From the testimony it appeared that the actual cause of the breakout of raw sewage was the placing of concrete plugs in pipes leading to distribution boxes in the septic system, although it was not shown at what time or by whom the plugs were placed in the pipes.

After the plugs were removed the disposal system still did not function properly due to the disruption of the septic absorption field by appellants’ excavation for the new house. This was the gravamen of the appellees’ claim for damages. Appellants first contend that when appellees’