Rockland Bleach & Dye Works, Co., Inc. v. Hj Williams Corporation, Inc.

Marbury, J., delivered the opinion of the Court. Rockland Bleach and Dye Works Co., Inc. (Rockland), plaintiff-appellant, filed a declaration against H. J. Williams Corporation, Inc. (Williams), defendant-appellee, containing three counts, all of which related to damages suffered as a result of excavation and construction work undertaken in 1962 by Williams as general contractor on the section of the Jones Falls Expressway adjacent to Rockland’s land in Baltimore County, Maryland. Rockland complained that by reason of Williams’ acts, its water supply had been cut off on two separate occasions, which caused interruptions in the processing operations being carried on in its bleach and dye works. The first count alleged that Williams had committed trespass in March, 1962, by causing or allowing mud and other debris to invade Rockland’s property, which completely filled its reservoir located thereon.

The second count sounded in negligence, and was related to the same facts set forth in the first count. The third count alleged another incident which occurred in April 1962, when a backhoe being operated by Williams’ employee in the vicinity of Rockland’s land broke one of its water pipes. The case was tried by a jury, Judge Menchine presiding, and at the conclusion of plaintiff’s case, the lower court granted defendant’s motion for a directed verdict on count one. At the conclusion of the whole case, the jury returned a verdict in favor of the defendant on counts two and three, and after the lower court had heard and denied a motion for new trial, final judgment was entered for the defendant, from which this appeal was taken.

The defendant-appellee was engaged to build a section of the ³⁷⁹ Jones Falls Expressway in Baltimore County, as general contractor under a contract with the State Roads Commission of Maryland (S.R.C.). For a period of time prior to March 13, 1962, pursuant to its contract, Williams had been making substantial changes in the grade and elevation of the property immediately adjacent to the property of appellant. Before appellee started its work, the land to the north of appellant’s was a valley or a meadow bottom. By March 13, 1962, appellee had constructed a huge fill to support the expressway at this location, which was some fifty feet high and three hundred ninety feet wide at the base.

Appellant’s property was improved by a large building in which a bleach and dye works had been operated for many years. It is similar to a large commercial laundry, in that it takes its customers’ yard goods or material—usually of cotton — which comes to it in a raw state after weaving, and processes them. The goods are purified and cleansed, the coloring matter or other impurities are removed, and the cotton is then starched or dyed for use by the subsequent manufacturer. Appellant’s plant operation is thus essentially a service organization, which owns no goods but which charges for processing the goods of others on a per yard basis.

Every operation in the various processes undertaken by appellant, except the stitching of the goods at the outset, and the packing at the end of the line, uses considerable amounts of water. In March of 1962, six hundred thousand to seven hundred fifty thousand gallons of water per day were being used in the regular course of appellant’s business. The principal source of this water was a reservoir owned by appellant which was located on its own property just at the toe of the huge slope or fill, which appellee had constructed adjacent thereto. This supply was supplemented by wells, and to a very small degree, by city water.

The reservoir had always been fed by a millrace or stream entering it from the northwest, which supply was channeled into a thirty-six inch pipe constructed by Williams before it began to construct the fill, so as to preserve the water supply to the reservoir. One of the special provisions of the contract with S.R.C. for the project, introduced into evidence as plaintiff’s exhibit No. 17, called par ³⁸⁰ ticular attention to 1 the fact that this millrace was a source of water supply to the appellant’s plant, and specifically provided that “water flow must be maintained at all times.” Appellee’s superintendent, being aware of the extreme importance of this matter, conferred with appellant’s superintendent about it before appellee began laying the thirty-six inch pipe. From the reservoir, which was higher in elevation than the plant, the water came by gravity through two outlets—a ten inch pipe and a six inch pipe—and then joined with pipe lines coming from the wells, which, in turn, entered the plant. Not only was the reservoir used as the principal source of water for the plant, but, being higher in elevation, it also acted as a source of pressure on the water coming from the wells, so as to enable that water to enter the plant under sufficient pressure to reach the processing machines.

If the reservoir were empty or clogged with mud or debris, the natural pressure on the well water would be insufficient to bring it into the plant at a usable pressure. A combination of water available from the city water line and the wells, without the pressure from the reservoir, was insufficient to allow normal operation of the plant. On the night of March 12, 1962, a heavy rainstorm occurred. The banks of the fill were eroded, water came from the cut section, off a hillside, and washed down the slope of the fill, and silt, mud, debris and water subsided or slid onto appellant’s land and into its reservoir, filling it—there was no free flowing water left in it.

Before the trial began appellee admitted that the mud and debris which filled the reservoir came from the cut and fill recently constructed by it adjoining the reservoir. During the trial appellee’s superintendent on the job also admitted that “it wasn’t unusual to have erosion or a small slide take place in a fill that was placed by equipment * * that it was usual for fills to erode and cuts to drain, and that “you get that condition most times in the spring, towards the spring of the year when you have hard rains.” The specifications, which were a part of the contract between S.R.C. and appellee for the work, plaintiff’s exhibit No. 16, provided in pertinent parts: “Section 10.05-14 Maintenance of Work, During Construction ³⁸¹ “The Contractor shall maintain the work during construction and until final acceptance. This maintenance shall constitute continuous and effective work prosecuted as required with adequate equipment and forces to the end that the roadbed, or structures, are kept in satisfactory condition at all times. “Particular attention shall be given to drainage, both permanent and temporary. The Contractor shall use all possible precautionary measures to avoid damage or loss that might result from accumulations and concentrations of drainage waters, and material carried by such waters and such drainage shall be diverted or dispersed when necessary to prevent damage to excavation, embankments, surfacing, structures or property. “Section 10.07-15 Preservation and Restoration of Property, Trees, Monuments, Etc. “2.

The Contractor shall be responsible for all damage or injury to property of any character during the prosecution of the work, resulting from an act, omission, neglect or misconduct in his manner or method of executing said work satisfactorily, or due to his non-execution of said work, or at any time due to defective work or materials, and said responsibility shall not be released until the work shall have been completed and accepted. When or where any direct or indirect damage or injury is done to public or private property by or on account of any act, omission, neglect or misconduct in the execution of the work or in consequence of the non-execution thereof on the part of the Contractor, he shall restore, at his own expense, such property to a condition similar or equal to that existing before such damage or injury was done, by repairing, rebuilding, or otherwise restoring as may be directed, or he shall make good such damage or injury, in an acceptable manner. * * * ³⁸² “Section 10.07-20 Contractor’s Responsibility for Work “Except as herein elsewhere provided, until final acceptance of the work by the Engineer, the Contractor shall have the charge and care thereof and shall take every precaution against injury or damage to any part thereof by the action of the elements, or from any other cause, whether arising from the execution or from the non-execution of the work. * * *” The superintendent for the defendant-appellee admitted that it had taken no special precautions to prevent the earth from the fill or cut from draining or sliding into the reservoir but had merely followed the engineering design given to it by the S.R.C. More specifically appellee did not shore, brace, sod, cover with concrete, or otherwise support the newly formed grade of the expressway, nor were gutters or culverts constructed at the base to accommodate surface water. After the occurrence on March 12, the appellee on orders from the S.R.C. removed the mud and soil from the reservoir and constructed a concrete swale to carry drainage around the reservoir, and the newly formed' banks of the fill were sodded or seeded. Mr. Richard H. Train- or, the State Roads Commission’s project engineer, testified' that in order to build the concrete swale it was necessary to-acquire additional property but that this was the only “practical” way of averting consequences of such a mud slide.

He further testified that prior to the March incident the S.R.C. would not have approved plans to build such a swale if Williams-had chosen to take such a precautionary measure. Trainor later admitted that there were a “lot of things” which could have been done which would have accomplished the same results, i.e., averting the mud slide, but presumably they would not have been “practical” in his view. The effect of the filling of the reservoir with the mud and' silt from the banks of the adjoining cut and fill was to block the inlet into the reservoir through the thirty-six inch pipe from the millrace, and at the other end of the reservoir, to block the ten and six inch outlet pipes to the plant. Muddy water entered the plant’s water system until the valves could be shut, and then all water from the reservoir stopped, and the in-plant ³⁸³ water supply, because of the absence of the water and the pressure from the reservoir, fell below the amount required to continue normal operations and production was curtailed for a full week, resulting in substantial damage to appellant’s business.

The facts which have thus far been set forth give rise to count one, alleging trespass, and count two alleging trespass on the case in the plaintiff’s declaration. On April 19, 1962, appellee’s men were working with a backhoe, digging a trench for the swale, when they dug across appellant’s property and, with the backhoe, broke the six-inch pipe leading from the reservoir to the plant, again cutting off the water supply from the reservoir, causing the plant operations to be curtailed for approximately another week, and resulting in further damage to the appellant’s business. Appellee’s superintendent admitted he knew of the existence of the pipe but not the specific location thereof. Nevertheless, without making any additional inquiry the appellee’s employees relied upon and followed a line staked out by the engineer from the S.R.C. An employee of the S.R.C. testified that inquiry had been made of Mr. Ralph Ault, plant engineer and maintenance superintendent of Rockland, as to the pipe’s exact location, but after Ault was unable to provide this information they proceeded on the erroneous assumption that the water pipes ran in a straight line from the reservoir to the plant.

The facts relating to the incident of April 19 are the basis for the plaintiff-appellant’s third count in its declaration claiming damages based upon appellee’s negligence in breaking the pipe. The causes of action came to trial in May of 1964, before Judge Menchine and a jury. In the course of that trial appellee’s attorney, on the record in open court, admitted liability for the April 1962 incident covered by count three of the declaration. However, because of an inadvertent allusion to insurance coverage which was thereafter made in the course of the trial, the lower court granted appellee’s motion for a mistrial.

After eight months, during which no amendments or changes were made in the pleadings, the case again came to trial before a jury on January 26, 1965. ³⁸⁴ As indicated in the beginning of this opinion, at the conclusion of plaintiff’s case, the lower court granted defendant’s motion for a directed verdict on count one. Before the close of defendant’s case, the lower court denied a motion by plaintiff to amend its declaration to add a fourth count asserting trespass with respect to the pipe breaking incident of April 1962, and at the conclusion of the whole case, denied plaintiff’s motion for a directed verdict in its favor on count three. At the conclusion of the trial, which lasted for six trial days, and after final arguments had been made, the jury, before retiring to consider its verdict, requested the exhibits in the case. The court refused to allow plaintiff’s exhibits 16 and 17, the contract specifications and proposal form, or specifically tendered excerpts therefrom, to go to the jury along with the other exhibits in the case.

On this appeal the appellant poses five questions, which are: I. Did the trial court err in directing a verdict at the close of the plaintiff’s case in favor of the defendant on count one of the declaration, which alleged that a trespass had occurred in March of 1962 ; II. Did it err in refusing to allow excerpts from plaintiff’s exhibits 16 and 17, the contract specifications and proposal form, pursuant to which appellee was to perform its work, to go to the jury room ; III. Did it correctly refuse to direct a verdict in favor of the plaintiff on count three of the declaration; IV. Did the trial court properly deny plaintiff’s motion to amend the declaration to add a fourth count asserting trespass with respect to the pipe breaking incident in April 1962; and V. Did it err in denying plaintiff’s motion for a new trial under all the facts and circumstances of this case. / The first question raised is whether the trial judge erred in granting defendant-appellee’s motion for a directed verdict as to count one which, it will be recalled, sounded in trespass.

At the time that motion was granted, before defendant had put on its case, Judge Menchine stated: “The motion of the defendant that relates itself to Count 1 of the declaration which the Court regards as ³⁸⁵ a trespass count is granted for the reason that it is the view of the Court that there is no showing in the case that there was an entry upon the plaintiff’s property by the defendant, its agents, servants and employees; nor a showing that the defendants are the owners of the property adjoining the property of the plaintiffs, and, therefore, there has been no showing in the mind of the Court of a trespass by the defendant upon the land of the plaintiff, and the motion will be granted.” Later in the court’s memorandum opinion denying a motion for new trial the trial judge said: “[T]he Court has a firm conviction that the Defendant Corporation does not bear either the relationship to the adjoining property or such control over its exploitation for road purposes as would submit to it liability under a trespass theory.” (Emphasis added.) There is no requirement under the law of this State, in order for an action in trespass to lie, that the trespasser own or have control (in the sense of being a possessor) of land adjacent to that trespassed upon. In the federal case of Whitehall Const. Co. v. Washington Sub. San.

Comm’n, 165 F. Supp. 730, 732 (D. Md. 1958), Judge Watkins, applying the Maryland law used the following language which is also apposite here: “The court knows of no case, nor has counsel called the court’s attention to any case, holding that an essential element of a cause of action for trespass or nuisance is ownership by the alleged tortfeasor of, or control over, land contiguous to the land invaded by the tortfeasor. While such ownership or control may often factually exist, and this is especially true where the tortious interference with an interest in land is occasioned by acts done on the adjacent land which result in an entry or invasion by an inanimate or intangible object rather than a living being, in either case it is the interference by the defendant with the plaintiff’s interest in the plaintiff’s exclusive possession of the invaded land or in the plaintiff’s use and enjoyment of such land that constitutes the actionable wrong.” ³⁸⁶ Although the appellee does not dispute the correctness of the above quoted portion of Judge Watkins’ opinion, it is its position that “the critical question under Maryland law is whether, with or without fault, appellee controlled the act which directly caused the invasion.” Under this test, the appellee asserts that Judge Menchine was correct in granting the directed verdict on the first count of the declaration, because, it is