Sainato v. Potter

Prescott, J., delivered the opinion of the Court. The defendants below appeal from a money decree entered against them by the Circuit Court for Prince George’s County for damages caused by surface water, silt, debris and other foreign substances draining from their property onto the adjoining property owned by the appellees. Lots 6, 7 and 8 in Block W in a subdivision known as Section 4, Forest Heights, face in an easterly direction on Sachen Drive. Lot 6 is the most southerly of the three lots and Lot 7 is contiguous thereto to the north, with Lot 8 adjoining Lot 7 to its north.

The appellants are the owners of Lots 6 and 7, and the appellees own Lot 8. The evidence discloses that in their original and natural state Lot 6 was slightly higher in elevation than Lot 7, and Lot 7 was slightly higher than Lot 8. A deep ravine ran in a northwesterly direction through a part of Lot 6 and proceeded diagonally across Lots 7 and 8 to the lots below. The surface water originally ran down across Lots 6, 7 and 8, the major portion of which was carried away in said ravine, and the remainder followed the general contour of the land, flowing to the rear and lower sides of these lots.

In the latter part of 1946 and the early part of 1947, the appellees erected a dwelling on Lot 8. In connection with the erection of their home they installed an 18" drain pipe beginning at the boundary of Lots 7 and 8, extending diagonally through the ravine that existed to the opposite bound ²⁶⁶ ary of Lot 8, for the purpose of carrying off the surface water which had previously flowed through the ravine. Following the installation of this pipe, they filled the ravine on their lot and placed fill dirt on the entire remainder of their lot, thereby raising the grade from two to seven feet above the original grade. At or about the same time the appellees also built a driveway on Lot 8, immediately contiguous to and paralleling Lot 7.

Sometime thereafter they erected a “berm” or mound of earth along the lot line of Lot 7 and paralleling the driveway. The effect of this fill, grading and installation of the “berm” above referred to was to raise the grade of Lot 8 above Lot 7, and the natural flow of the surface water from Lot 7 through Lot 8 was changed, and surface water which had originally drained from Lot 7 through Lot 8 was thereby caused to collect on Lot 7 creating a swampy condition. In May of 1947, the appellants purchased Lot 7. During the years 1951 to 1954, intermittently, the appellants placed fill on Lot 7.

Shortly before building upon this property, the appellants had a bulldozer level off Lot 7; and, in so doing, the new earth was pushed out to, or very near, the boundary between Lots 7 and 8. After the bulldozing on Lot 7, mud, silt and debris were washed by the elements on to Lot 8, and they killed several trees and destroyed the appellees’ vegetables. At the time of the hearing, Lot 7 was again slightly higher in elevation than Lot 8, and the surface water flowed from Lot 7 onto Lot 8. There still existed a depression in Lot 7 about midway back from the front, and not far from the boundary line of Lot 8, which was described as a catch basin type of depression for the accumulation of drainage water, as observed by the chancellor, and both Lots 7 and 8, as originally, sloped sharply toward the rear with the general grade following a general downward trend toward the street below.

Originally the bill of complaint had prayed for injunctive relief. At the time of the trial, the appellants had sold Lots 6 and 7 and the purchasers had intervened. The chancellor refused to issue an injunction and no appeal was taken on this point. He, however, found that the appellants’ grading had the effect of materially changing the natural flow of sur ²⁶⁷ face water, which caused silt, debris and other substances to be deposited on Lot 8, and awarded damages therefor.

The appellants first claim that the evidence does not support a finding that the grading of Lot 7 caused “an excess drainage and diversion of surface waters onto Lot 8”; and, even if the evidence did disclose that the appellants filled their property and this filling did change the natural flow of surface water, this change was “a reasonable use” of their property under the “reasonableness of use” rule relating to surface drainage. This Court has consistently held that the civil law rule, and not the common-law rule, regarding surface waters applies in Maryland; that is, the owner of higher land is entitled to have surface water flow naturally onto the lower land of an adjoining landowner. P. W. & B. R. R. Co. v. Davis, 68 Md. 281 , 11 A. 705 ; Balto. & Sparrows Pt. R. Co. v. Hackett, 87 Md. 224 , 39 A. 510 ; Eisenstein v. Mayor, etc., of Annapolis, 177 Md. 222 , 9 A. 2d 224 ; Biberman v. Funkhouser, 190 Md. 424 , 58 A. 2d 668 ; Bishop v. Richard, 193 Md. 6 , 65 A. 2d 334 ; Battisto v. Perkins, et al., 210 Md. 542 , 124 A. 2d 288 .

And the lower landowner cannot obstruct the running of natural surface waters onto his land from that of the higher owner. Hancock v. Stull, 206 Md. 117, 110 A. 2d 522 , County Comm’rs of Baltimore County v. Hunter, 207 Md. 171 ; 113 A. 2d 910 ; Battisto v. Perkins, supra; Kennedy-Chamberlin Development Co. v. Snure, 212 Md. 369 , 129 A. 2d 142 . This rule is however, subject to the important limitation that the higher landowner cannot artificially collect surface water and discharge it at one point over the lower land, so as to injure it, nor can he precipitate it in greatly increased or unnatural quantities upon his neighbor below to the substantial injury of the latter. Neubauer v. Overlea Realty Co., 142 Md. 87 , 120 A. 69 ; Biberman v. Funkhouser, supra; Battisto v. Perkins, supra; Kennedy-Chamberlin Development Co. v. Snure, supra.

In cases where a strict application of the general rule would result in hardship upon either the higher or lower landowner, Courts have recognized what is termed a “reasonableness of use” rule. An application of this rule creates no precedent, ²⁶⁸ nor does it change the adopted rule of law. It is based upon the facts of a particular case, and provides mitigation for the harsh application of the general rule. This Court has recognized the rule on several occasions.

Whitman v. Forney, 181 Md. 652 , 13 A. 2d 630 ; Bishop v. Richard, supra; Hancock v. Stull, supra. The appellants ask us to determine the case on this “reasonableness of use” doctrine, and