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State Roads Commission of v. Preston

Decided: October 12, 1961.

STATE ROADS COMMISSION OF MARYLAND
v.
PRESTON ET UX.



Appeal from the Circuit Court for Harford County; Day, C. J.

Brune, C. J., and Henderson, Prescott, Horney, and Marbury, JJ. Prescott, J., delivered the opinion of the Court.

Prescott

This is an appeal from a decree of the Circuit Court for Harford County granting the appellees' prayer for a permanent injunction to enjoin the appellant from causing or permitting surface water from State Route 22 to flow onto the appellees' land, and to fill a ditch which appellant has made on the land of the appellees.

The appellees, Benjamin Burdell Preston and his wife, are the owners of a tract of land in Harford County, which now contains approximately 35 acres, fronting on the general southerly side of the Aberdeen-Churchville Road, known as Maryland State Route No. 22, for a distance of some 1700 feet.

Originally, the property consisted of about 45 acres, but, in accordance with their plan to sell a substantial portion thereof as residential building lots, the appellees have subdivided a part of the property and have sold building lots therefrom, which lots have been improved by valuable and attractive homes.

The terrain in the most westerly portion of the property slopes generally from north to south and from west to east. Some of the land has a higher elevation than the bed of old Route 22, and in some places the elevation is slightly lower. Before being reconstructed in 1955, Route 22 was a 16-foot

macadam road with a crown. Surface water therefrom in the vicinity of the westernmost portion of the appellees' property was drained into ditches running parallel with both sides of the road, with the water flowing in an easterly direction. When the water reached a point considerably to the east of the appellees' boundary, the water in the ditch on the south side of the road (the front of appellees' land) was carried under the road through a pipe to the north side and drained on that side of the highway. In the vicinity of Station 193 on appellant's plats 9700 and 9701, there were no drain pipes under the road, nor was any water drained onto appellees' property from the road; the land in this area was tilled for farming purposes and was not eroded.

In the early part of 1954, the appellant began acquiring land from abutting property owners, in connection with its plans to widen Route 22. In May, Eugene L. Jones, representing the appellant's Right-of-Way Department, got in touch with the appellees in regard to acquiring a portion of their property. After negotiating, Jones filled in the blanks of a printed form of option agreement used by the appellant, which the appellees then signed. Thereafter, on August 3, 1954, the appellees went to the office of the appellant's local attorney and executed the usual State Roads Commission's printed form of deed.

In the spring of 1955, the appellant proceeded to widen, grade and rebuild said Route 22 so that the width of its travelled surface was changed from 16 feet to 24 feet, with two 10-foot stabilized shoulders, making a total impervious surface of 44 feet in width. The crown of the old road was practically eliminated. Because of the greatly increased width of the new road and the substantial amount of surface water which resulted, the appellant devised a drainage scheme whereby surface water flowing off the north side of the road, for a distance of about 600 feet west of said Station 193, is collected into a ditch on the north side of the road and is drained in an easterly direction to a catch basin. This water is then carried under and to the south side of the road by means of a 24-inch reinforced concrete pipe, which is connected with a ditch which the appellant has made on the appellees'

property opposite said Station 193. In addition, surface water draining from the south side of the road, for a distance of about 500 feet west of Station 193, is collected in a ditch constructed on the south side of the road, and running parallel with it; and this water is drained in an easterly direction to the southern end of the said 24-inch concrete pipe, where it merges with the surface water draining from the north side of the road. The combined streams of surface water are then directed upon the appellees' property, where such water had never previously been collected or discharged. The water and accumulated debris are then dumped and abandoned. As a direct result, considerable erosion has occurred on the appellees' land, and a ditch 3 feet in depth and 150 feet in length has been created thereon. At the southern end of the ditch the water diffuses, causing the relatively flat land there to become soft and marshy, and useless for any purpose. Philip Webster, a realtor, testified that at least two potential building lots fronting on Route 22, having a total value of $4,000 are rendered worthless, and that two to three acres of back land, valued at between $800 and $1,000 per acre, have been made useless.

We find it unnecessary to set forth the details of the negotiations that resulted in the execution of the option agreement nor the circumstances surrounding the signing of the deed, for the trial court made three findings of fact; which, after a careful examination of the record, we conclude should be affirmed. Maryland Rule 886. These findings were: (1) that the Prestons did not actually know that a drainage system would carry water onto their land at Station 193 either on the date the option was executed, or on the date the deed was executed; (2) that the Prestons first learned of the drainage system at Station 193 when they returned to their home from a trip to Virginia, and found it virtually ...


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