Turner v. Washington Suburban Sanitary Commission

⁴⁹⁷ Henderson, J., delivered the opinion of the Court. The appellants, plaintiffs below, brought an action at law seeking damages both compensatory and exemplary for trespass to real estate against the defendants below, O.F.C. Corporation, the Washington Suburban Sanitary Commission, and the individual commissioners, appellees here. The declaration also sought injunctive relief. The court below refused to grant a temporary restraining order, and the case came to trial before a jury, which returned a verdict of $8,730.00 against O.F.C. There was a directed verdict in favor of the other appellees.

On motion by the defendant O.F.C., for new trial or judgment n.o.v., the court granted the motion for new trial unless the plaintiffs should remit the sum of $7,230.00. The court also entered an order denying injunctive relief. The plaintiffs filed the remittitur, reserving and claiming, however, a right to appeal “from the judgment of the Court denying their motion to enter judgment” for the amount of the jury’s verdict “and to insist that the Court of Appeals of Maryland shall enter judgment” for such amount. Final judgments were entered against O.F.C. in the sum of $1,500.00, and in favor of the other defendants for costs.

The plaintiffs appealed. There was no cross-appeal. It appears that the plaintiffs, the Turners, acquired a ten-acre tract of land in Montgomery County in 1947, fronting on State Route 97, known as Georgia Avenue extended. The rear portion of the tract, containing about six and two-thirds acres, was condemned for a school site in 1956.

In 1955 the O.F.C. Corporation began to develop the contiguous properties lying to the north and south of the Turners’ property, referred to as the Hartley and Stroup properties, respectively, and likewise fronting on Route 97 to the east. The natural slope of the lands is from north to south, and there is a natural depression or swale eighty feet wide across the rear portion of the three and one-third acre tract retained by the Turners, where they conducted a restaurant business until 1955 when they leased the property. Surface water coming onto the Turner property from the Hartley property is carried off by “yard traps” into a creek or branch of the Potomac River. ⁴⁹⁸ In planning its development, O.E.C. designed and dedicated Loyola Street, fifty feet wide, to run to the Turners’ north boundary and pick up again at the Turners’ south boundary, at about the location of the swale. It proposed to carry its sanitary sewer system across the Turner property at this location, and also to install a storm drain system to carry off surface waters.

These plans were approved by the Sanitary Commission, but the commission expressly advised O.F.C. that it assumed “no responsibility for damages to lower landowner”, in connection with the proposed storm drain. In connection with the sanitary sewer, the commission instituted a condemnation proceeding to obtain an easement across the Turner property, but this was abandoned after verdict. Thereafter, the commission constructed a sanitary sewer along the south side of the Hartley tract to Georgia Avenue extended, across the public road to its east side, along the road in front of the Turner property, and again across the road to connect with the sewer in Loyola Street on the Stroup property. The case against the Washington Suburban Sanitary Commission rests upon this installation of the sanitary sewer.

It was stipulated that the Turners hold record title to the bed of Georgia Avenue extended for a distance of about 509 feet in front of their property, subject to any rights the public may have therein, but the extent of these rights is far from clear. By an Act of the General Assembly passed on February 27, 1850, (Ch. 358 Acts of 1849) the Union Plank or Turnpike Road Company was incorporated, and authorized to construct a plank or paved road in the bed of existing public roads, with the consent of another turnpike company and the County Commissioners of Montgomery, Howard and Anne Arundel Counties, and to alter their grade and course. A general power of condemnation was granted where it should become necessary to “occupy new ground”. Union instituted a condemnation suit against the Turners’ predecessors in title, but we were informed at the argument that these papers have been lost.

In 1913 the Turnpike Company, by duly recorded deed, conveyed all its rights in Georgia Avenue extended to the ⁴⁹⁹ State Roads Commission, which improved it, and has maintained it ever since, as a state road. The appellants contend that the Turnpike Company obtained only an easement of public travel, and since Georgia Avenue extended was only a country road at the time of the condemnation of the easement, the laying of a sanitary sewer in its bed is an additional servitude for which they should be compensated. They rely upon Water & Electric Co. v. Dubreuil, 105 Md. 424 . It was held in that case that an injunction was properly issued to restrain the Water Company from laying water pipes in the bed of Lake Avenue, in Baltimore County, on the ground that this constituted an additional servitude.

Lake Avenue was a public road, although admittedly of a rural character, but it was shown that the complainants, abutting landowners, owned the fee to the center of the road, including the portion thereof in which the pipes were proposed to be laid. The court recognized a distinction between streets in a town or city, and country or rural highways. In the former, it was said to be universally recognized that the laying of gas or water pipes would not be an additional servitude. The distinction has been criticized as “fanciful” and unsound.

See 3 Nichols, Eminent Domain (3d ed.), §§ 10.1 [1], 10.4 and 10.4 [1]. See also 12 McQuillin, Municipal Corporations (3d ed.), § 34.118. In the Dubreuil case the court found as a fact that the pipes proposed to be laid in Lake Avenue were not designed to serve abutting owners, but to carry a water supply to a distant point. It also found as a fact that the proposed use was not reasonably within “the scope of the original easement”, but in this connection the court said (p. 428): “The tribunal whose duty it is to determine the question is not to be governed alone by the mode of user first adopted, or by the conditions existing at the time the highway is acquired by the public.” The court further said (p. 432) : “There is nothing in our decisions that indicates that laying gas or water pipes under what was originally a mere rural highway, after it becomes built upon and populous, like an ordinary street in a town, can be said to be ‘outside the scope of the original easement,’ * * And (at p. 434) : “There are places on the ⁵⁰⁰ plat filed, * * * where houses have been erected in such numbers and in such proximity to each other as would justify the application of the rule which governs streets in cities and towns,”.

We think the sentence last quoted is applicable in the instant case. It was stipulated that the area surrounding the Turner property, which was once rural, is now a fairly well populated area undergoing further development. It is suburban, rather than rural, in character, and the sewer in question is designed to serve public needs of the abutting owners and the expanding community, in a matter directly related to the public health. It may also be observed that sewer disposal, through pipes, is itself a form of public transportation.

The Washington Suburban Sanitary Commission was created by Chapter 122, Acts of 1918. There can be no question of the legislative power to create such a corporation and invest it with appropriate powers to carry on its work essential to the health and welfare of the people of the designated district. Neuenschwander v. Washington Suburban Sanitary Comm., 187 Md. 67, 75 . Under section 18 of that Act it was authorized to construct and maintain water mains, sewers or drains in any public road without permit or the payment of any charge.

We think the Dubreuil case is distinguishable from the instant case on the facts. Since we hold that the Commission did not exceed its powers, or infringe upon the rights of the Turners, in laying and maintaining the sewer in the bed of Georgia Avenue extended, no liability can attach to the individual commissioners. See Smith v. Stephan, 66 Md. 381, 389 , and 4 McQuillin, Municipal Corporations (3d ed.), § 12.208. We find no error in the action of the trial court in directing a verdict in favor of the Commission, and the commissioners individually.

The case against O.E.C. is based upon the channeling and discharge of silt and debris upon the Turner property, through the construction of pipes, drains and ditches designed to concentrate surface water and carry it across the Turner property underground. O.F.C. made no effort to obtain an easement for that purpose, other than to write one letter requesting that an easement “over 7,398 square feet of your property”, ⁵⁰¹ in a suggested extension of Loyola Street, be granted to it without charge, O.F.C. undertaking to pay the cost of preparing and recording an appropriate instrument. Nothing was said about the cost of installing the storm drain across the Turner property if the easement were granted but presumably O.F.C. was prepared to pay for that. This letter was not answered.

O.F.C. continued with its storm drain plan, the only change being that it moved the drainage outfall back from the boundary line about one hundred feet, and channeled the discharge from the whole system into an open ditch leading directly to the swale. Evidence was produced to show that the result was to increase the flow into the swale, choke the “yard traps”, and cause a deposit of silt and debris far in excess of the natural drainage. That this was an actionable wrong is not denied. See Battisto v. Perkins, 210 Md. 542, 546 , and Kennedy-Chamberlin Development Co. v. Snure, 212 Md. 369, 376 .

Nor do the appellants now contend that there was any error in the court’s charge as to compensatory damages, although they press their objection to the court’s instruction that the evidence was insufficient to support their claim for punitive damages. There was testimony that the property could be restored to its original condition for about $1,000.00, although there was other testimony that, by reason of the installation of the storm drainage system and channeling of storm waters, there was a diminution in the value of the plaintiffs’ property to the extent of some $29,000.00. Other testimony was to the effect that there was no diminution in value, and that if the property was devoted to its highest and best use, an underground storm drain would be essential, and a benefit to the property. The appellants main contention is that the court invaded and usurped the function of the jury in passing its order that the plaintiffs remit or submit to a new trial, and that the court thereby denied to the plaintiffs their constitutional guarantee of trial by jury under Art. 5 of the Maryland Declaration of Rights, and Art. 15, sec. 6 of the Maryland Constitution.

They also ask us to find that the trial court abused its discretion, and to reinstate the jury’s verdict. The trial practice of granting a new trial sought by the ⁵⁰² defendant, unless the plaintiff remit a portion of the verdict which the trial court deems excessive, is well established in Maryland. It is referred to without the citation of authority in 2 Poe, Pleading and Practice (Tiffany’s ed.), § 347. In Attrill v. Patterson, 58 Md. 226, 260 , the amount remitted was the excess over the amount claimed in the declaration, and this was approved on the authority of Harris v. Jaffray, 3 Harris & J. 543, Poe (cited above), and a statute, the predecessor of Code (1951), Art. 26, sec. 15, now incorporated as Maryland Rule 641.

But in Brawner v. Hooper, 151 Md. 579 , it was held in a