Samson Construction Co. v. Brusowankin

Hammond, J., delivered the opinion of the Court. Mr. and Mrs. Brusowankin and Mr. and Mrs. Krampf bought three attractively wooded homesites (the Brusowankins two lots, and the Krampfs one), high on a ridge overlooking a valley in a rapidly developing area of northwest Baltimore. Two years later, Samson Construction Company, Inc., bought a twenty-three acre tract that touched the three lots, on which it planned to build houses for sale. It hired Raymond W. Coffman, who traded as Lincoln Clearing Company, Inc., to clear the land.

Lincoln proceeded to bulldoze all trees from the Samson land. Unfortunately it also stripped the trees from the lots of the Brusowankins and the Krampfs, so that they, too, with the exception of half of one of the Brusowankin lots, were as bare as a board but not as smooth, being torn and rutted from the uprooting of the trees and the bulldozers. The Brusowankins and the Krampfs sued Lincoln and Samson, one count alleging trespass and another negligence. Both declarations allege that the plaintiffs had purchased their lots to build their homes, primarily because they were covered abundantly with ornamental and shade trees of beauty, quality and size, and that the trees and their foliage had particular value to them; that the beauty and desirability of the lots as homesites had been destroyed because of the removal of the trees and erosion of the land; and that in order to build, they must, at great expense, replace topsoil, landscape, and build drainage ditches to offset the erosion resulting from changes in grade.

The trial court told the jury, as a matter of law, that Lincoln had trespassed on the land of the lot owners and was liable to them for damages, and submitted to the jury the questions of the negligence of Samson and the amount of ⁴⁶³ damages. The court refused to instruct, as Lincoln and Samson requested, that the only measure of damage was the difference between the value of the lots before the injury complained of and the value afterwards; and did instruct them, as the lot owners requested, that if the jury found the owners had reasons personal to them for restoring the lots as nearly as reasonably possible to their original condition, the jury could allow the reasonable cost of so doing, even though greater than the value of the lots. Lincoln concedes it is liable for the destruction of the trees but challenges the measure of damages as to them; it denies liability for causing erosion to the lots by changing their grade in relation to the adjoining Samson land. Samson denies that it was negligent in any way, and joins Lincoln in claiming that the only measure of damage is the difference in value before and after the injury; or, in the alternative, that if the cost of restoration has any place as a measure of damage, it is only if that cost does not exceed the diminution in the market value; if it does exceed the diminution, then the before and after test must apply.

We think there was sufficient evidence from which the jury could find that Samson had been negligent and that its negligence was the proximate cause of the damage to the lot owners. The testimony was that Samson was extremely anxious to get on with the clearing; that it furnished Lincoln with a plat that included property which did not belong to Samson but which was indistinguishable from it physically, and which did not designate the area to be cleared; that Samson failed to have the boundaries of its property staked on the ground, although it assumed the responsibility for so doing; that the bulldozing of the trees on the homesites occurred before the lots were staked; that Samson told Lincoln that it should clear all land in the area except lots already built on or on which there were lawns; that Harry Samson and Norman Samson, the officers and principal stockholders of the corporation, told Lincoln to proceed before the area had been staked; that Harry Samson walked over the property with Coffman, the owner of Lincoln, and walked by the lots in question without even mentioning them, and, in addition, ⁴⁶⁴ told Coffman that Samson had options on everything that wasn’t built on or planted. There was testimony, admitted over Samson’s objection, that Harry and Norman Samson both told Lincoln to begin the clearing without a survey and that Samson would be “responsible” for any damage done to property not owned by it. We think that there was no error in admitting this testimony.

It was relevant to show Samson’s insistence that clearing begin and its disregard for foreseeable harm to the rights of ■ others. The cases make it plain that the mere employment of an independent contractor will not always relieve the prinicpal from liability for damage done by the contractor. If the injury that occurs is such as might have been anticipated as a probable consequence of the execution of the work let out to the contractor under the instructions given by the employer, the employer, as well as the contractor, may be held liable. P., B. & W. R. Co. v. Mitchell, 107 Md. 600 ; Bonaparte v. Wiseman, 89 Md. 12 .

In Levi v. Schwartz, 201 Md. 575, 583 , the trial court instructed the jury that if the contractor “acted under the direction or with the consent of the officers or agents of the developer * * * then the developer and the officers or agents who gave authorization are liable” for the acts of the contractor, and this Court said: “We think that instruction was correct.” We have no difficulty in concluding that what occurred as a result of the acts and omissions of Samson should have been foreseen by it and that the jury could find it responsible. Both Samson and Lincoln contend that there was no evidence of erosion damage to the lots for which they could be held responsible. We think there was. Samson raised the grade of its land to the rear of the lots two and a half feet and, it was testified that, as a result, the lots had eroded and would erode in the future.

There was evidence that Lincoln had lowered the grade of the lots some inches by its operations. This lowering, caused by the removal of the trees, plus the use of heavy machinery on the lots, together made Lincoln contribute to past and future erosion. An expert witness said, in speaking of damage done by Lincoln, that when heavy equipment was run over soil from which big ⁴⁶⁵ trees had been taken, the water cannot go down into the soil “because it is sealed”, and that in such case “You have a lot of layers of soil running in the wrong direction. So, therefore, you won’t grow anything and it will wash much more so than an undisturbed soil.” He testified that the best way to correct the damage was to cover the lots with a layer of topsoil, plant them with grass and construct a swale between them and the Samson land so that the water could be drained off.

A not dissimilar situation was dealt with in Laird, Rock & Small, Inc. v. Campbell, 200 Md. 627, 632 . In that case the lower court had found that the defendants had stripped the land and made the subsoil so hard that water flowed over it onto the adjoining land of the plaintiff in a stream, but that a great amount of water, in any event, would have flowed onto that land from natural causes and conditions, and exonerated the defendants. Judge Markell, for the Court in reversing, held that a wrongdoer may not apportion or qualify his own wrong, and said: “Whether additional water due to defendant’s negligence contributed ‘materially’ to the damage is not a question of percentage. * * * The reasonable inference is that every drop in the cup contributed to the cup overflowing.” We think the reasoning and conclusions of that case are applicable to the matter of erosion in the case before us. The instructions to the contrary, requested by the appellants, properly were denied.

We turn to consideration of the proper measure of, and the testimony as to, damages. It is a fundamental principle that one whose real property has been damaged should recover an amount sufficient to compensate him fully for losses which are the proximate result of the wrongdoer’s conduct, which he pleads and proves. 15 Am. Jur. Damages § 106; 34 Am.

Jur. Logs and Timber § 131; Baltimore Belt R. R. Co. v. Sattler, 102 Md. 595, 601 ; The Redemptorists v. Wenig, 79 Md. 348, 355. The general rules may be summarized as follows. If the real value of trees wrongfully severed is as timber, their value as timber may, if sought, be recovered, and often a statute will—as does Code, 1957, Art. 66C, Sec. 368—provide for double or treble actual value as damages.

(Generally such increased damages are treated ⁴⁶⁶ as punitive. Superior Construction Co. v. Elmo, 204 Md. 1, 14 .) Where it is alleged and proved that trees destroyed had a calculable value separate from that of the land on which they stood, many cases have applied the measure of the reasonable value of the trees at the time and place of their destruction. Where the separate value of the trees destroyed is not susceptible of exact proof, or complete compensation cannot be afforded without consideration of the loss in relationship to the land as a whole, based on its previous condition, the courts often have said that a proper measure of damages is the difference in the value of the land before and after the act complained of. Usually, in the latter cases, there is taken into account evidence, otherwise sufficiently definite and probative, as to the value of the trees as bearing on the whole loss, and the amount of the depreciation.

McCormick on Damages, Sec. 126, p. 491; 25 C. J. S. Damages § 85; 161 A. L. R. 549, 551, 598, 601, et seq., and cases cited. The annotator says at page 551 that of the cases holding the “before” and “after” rule proper, “few of them, if any, evince an intention to view the rule as an arbitrary one or an exact formula, exclusively applicable or in itself appropriate to the solution of all problems * * * but rather they show that regard should be had in each case to all the circumstances and the separate items of damage proved * * *.” It is to be noted also that exceptions and reservations to the absolute application of the before and after rule have been especially recognized in the. case of fruit and .shade trees. 15 Am. Jur. Damages § 119.

Many cases in many jurisdictions have said that where trees, including fruit and ornamental trees, are destroyed or harmed by a wrongdoer, the proper, or a permissible, measure of damage is. the diminution in the value of the land on which they grew. This Court has so stated, usually in cases where that was the damage sought and proved by the owner. See Western Union Tel. Co. v. Ring, 102 Md. 677; Western Md. Ry.

Co. v. Jacques, 129 Md. 400 ; Western Union Tel. Co. v. Rasche, 130 Md. 126 . However, the value that is to be determined is not invariably the market value of the land on which the trees stood before and after the wrong, but under ⁴⁶⁷ appropriate circumstances may be the value of the trees or the reasonable cost of a reasonable restoration of the property as it was before the wrong. Restatement, Torts, Sec. 929. 4 Sutherland, A Treatise on the Law of Damages, 4th ed., Sec. 1019, citing a long list of cases, says: “The plaintiff may adopt the value of the timber or fruit trees as the measure of his damages, but is not obliged to do so; if the injury to the land exceeds the value of the timber or trees or, in other words, if the trees were worth more standing, he may recover their value as part of the lands.” A number of cases have held directly, or in effect, that “An owner of real estate has a right to enjoy it according to his own taste and wishes, and the arrangement of buildings, shade trees, fruit trees, and the like may be very important to him * * * and the modification thereof may be an injury to his convenience and comfort in the use of his premises which fairly ought to be substantially