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O. F. C. Corp. v. Turner

Decided: March 16, 1962.

O. F. C. CORPORATION
v.
TURNER ET AL.



Appeal from the Circuit Court for Montgomery County; Shook, Pugh, JJ.

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

Marbury

A part of the controversy between two stubborn litigants in this case is before this Court a second time. The present appellant was one of the appellees in the prior case. Turner v. Washington Suburban Sanitary Comm., 221 Md. 494, 158 A.2d 125.

The appellees (Turner) moved to dismiss the appeal pursuant to Maryland Rules 828 b 1 (c), 828 c 1 and 2 and 830 d 1. At the argument we reserved our ruling on the motion. We find no merit in the motion since the record does not disclose any prejudice to the appellees which would justify dismissal of the appeal. We, therefore, overrule it, but will consider it in the awarding of costs under Rule 828 i and proceed to consider the case on its merits.

The first appeal involved primarily the contentions of the Turners that the trial court erred in failing to give an instruction on punitive damages, and requiring a remittitur. Also involved was the contention of the Turners that the trial judges improperly denied injunctive relief. This Court, on appeal, affirmed the judgment, but remanded the case for further proceedings relative to the issuance of an injunction. With respect to the refusal of the trial judges to grant injunctive relief, the opinion read as follows:

"We think the trial court erred in denying injunctive relief. Presumably, the award of compensatory damages did not include prospective damages subsequent to the time of the institution of suit (or perhaps the time of trial, we need not now decide which), yet, so long as the channeling and discharge of water is suffered to continue without abatement, there is the strong probability of future damage, and the prospect of future actions at law, which would make equitable relief singularly appropriate. For a

discussion of the problem, see Spaulding v. Cameron, 239 P. 2d 625 (Cal.), cited in the Battisto case, supra, and Restatement, Torts, ยง 930. We are not persuaded by the trial court's statement that there is no way in which the exact quantity of increased flow could be determined. It is enough that there was a material increase. The wrongdoer may not apportion his own negligence. Laird, Rock & Small, Inc. v. Campbell, 200 Md. 627, 632. Equity sometimes applies the rule of 'comparative hardship', Dundalk Holding Co. v. Easter, supra, but usually in cases of innocent mistake. In cases relating to surface waters, this Court has frequently stated and applied the 'reasonableness of use' rule. Whitman v. Forney, 181 Md. 652; Biberman v. Funkhouser, 190 Md. 424; Bishop v. Richard, 193 Md. 6; Hancock v. Stull, 206 Md. 117; County Comm'rs of Baltimore County v. Hunter, 207 Md. 171. In some cases the equity court has required the injured party to permit entry upon his lands to make repairs and open drains. On remand, the trial court may properly consider expert testimony as to whether some modification of the storm drainage system might disperse the flow and prevent the wrongful concentration and discharge of surface waters, and whether disposal could reasonably be made at some other point. We do not suggest the exact form of relief, but we think it was not reasonable for the trial court to refuse any injunctive relief against the recurrence of an injury which admittedly caused substantial damages in the past, without a showing of reasonable efforts to correct it."

Upon remand the trial judges appointed Mr. Page Hopkins, a registered engineer, to make an expert analysis of the storm drainage system, and to make recommendations. The factual background upon which Mr. Hopkins was requested to report and analyze is substantially set forth in 221 Md. 494, particularly at pages 497 and 498, which, for the sake of brevity, we will not reiterate.

Following the submission and filing of the Hopkins report, a hearing was had in open court and additional testimony, including that of Mr. Hopkins, was taken. In the course of his testimony Mr. Hopkins stated that prior to the appellant's development operations the rate of run-off was approximately six cubic feet per second of water crossing the Turner property, and after the development, sixteen cubic feet per second, or an increase of ten cubic feet per second as the result of the development.

Mr. Hopkins' finding was that the highest and best use of the Turner property was for subdivision development and this would necessitate the dedication of Loyola Street across the Turner property, connecting with Loyola on the southern side of the Turner land. Accordingly, he recommended that the Turners provide a right of way for an underground pipe, sufficient in size to carry off the "excess" water, and that this underground structure be placed across the Turner property "centered as nearly as possible on the former ditch which, testimony indicated, crossed the property." The estimated cost of this work was $2164, not including allowance for an easement. He testified that the flow of water can not practicably be piped underground and diverted away from the Turner property to Georgia Avenue in the manner in which the sanitary sewer was laid by the Washington Suburban Sanitary Commission.

At the original trial Mr. Joseph C. Rogers, who testified as an expert engineer for the appellees, suggested that an eighteen inch pipe be extended from the present outfall along the north boundary of the Turner property, then south along the west boundary (abutting the property of a public school) and then east to the catch basin on ...


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