Bishop v. Richard
| Decision Date | 01 April 1949 |
| Docket Number | 131. |
| Citation | 65 A.2d 334,193 Md. 6 |
| Parties | BISHOP et ux. v. RICHARD et ux. |
| Court | Maryland Court of Appeals |
Appeal from Circuit Court, Caroline County; Floyd J. Kintner, Judge.
Suit by Calvin R. Richard and Elsie M. Richard, his wife, against Oscar Bishop and Elnora C. Bishop, his wife, to enjoin defendants from filling up drainage ditches on their property, from interfering with entry of plaintiffs on defendants' land to clean the ditches in a reasonable and proper manner, and for other relief. From the decree defendants appeal.
Decree affirmed.
W Hyland Van Sant, of Denton, for appellants.
K Thomas Everngam, of Denton, for appellees.
Before DELAPLAINE, COLLINS, GRASON, HENDERSON, and MARKELL, JJ.
This is an appeal by Oscar Bishop and Elnora C. Bishop, his wife appellants, from a decree of the Circuit Court for Caroline County granting an injunction prayed by Calvin R. Richard and Elsie M. Richard his wife, appellees.
The bill of complaint alleges in part that the appellees are the owners of two tracts of land in Caroline County to the south of the lands of the appellants. For over fifty years the appellees' land has continuously drained naturally through ditches and tile pipes across the land of the appellants to a main ditch and then into the Choptank River. The ditches on appellants' land have become blocked so that the drainage from the appellees' land has been impeded. Appellees have requested permission from appellants to clean out the ditches. Permission has been refused and appellees have been driven from appellants' land by Oscar Bishop. The bill asks (1) that the appellants be enjoined from filling up or in any manner preventing the ditches on their property from properly functioning and (2) that the appellants be enjoined from interfering in any way with the appellees going on appellants' land and cleaning the said ditches in a reasonable and proper manner so that the ditches may be restored to their former condition in order that they will properly operate. After answer filed and the taking of testimony in open court, the chancellor decreed relief (2) above prayed and from that decree the appellants appeal. The relief asked in (1) was not decreed and there is no cross appeal.
As the appendix to appellants' brief consists only of the pleadings in the case and the opinion and decree of the chancellor and no testimony, we are confined to the facts as found by the chancellor and to the testimony in the appendix of appellees' brief. Strohecker v. Schumacher, 185 Md. 144, 146, 43 A.2d 208; Condry v. Laurie, 186 Md. 194, 197, 46 A.2d 196; Butler v. Reed-Avery Co., 186 Md. 686, 690, 48 A.2d 436; Queen v. Anderson, Md., 62 A.2d 612, 613. The appellants in their argument in this Court stated that the facts found by the chancellor were substantially correct, but assign as error the application of the law to those facts.
The facts thus revealed follow. The lands of the appellants, Bishop, lie north of those of the appellees, Richard. The locality is flat and drainage a problem.
The general fall of the land and the natural flow of the surface water, although slight, is from a southerly direction (from the Richards' lands) in a northerly direction (toward the Bishops' lands). For a period of about fifty years four or five well defined ditches have existed across the Bishop farm and have drained various portions of the Richard farm. The ditches on the Bishop farm have been continued across the Richard property. At various times tile drain pipes have been installed in the bed of the ditches on the Richard property. From time to time the ditches on the Richard property have been straightened and branched laterally. The water from the Richard farm and the Bishop farm is finally discharged from the four or five ditches on the Bishop farm into a large drain passing under the public road and the water flows eventually in a northerly direction into the Choptank River. The natural slope of the land has caused the water from the Richard property to flow naturally across the Bishop farm for at least thirty years. The chancellor found: 'As stated, the natural slope of the land, although slight, is from the Richards farm toward the Bishop farm, and the water from the Richards farm has flowed across the Bishop farm for many years, possibly thirty to fifty years.' Within the past two years, however, Mr. Richard has improved the ditches leading into a swamp of six or seven acres. A change has also been made in the last four or five years in a ditch on the Richard property to a field of about fifty-two acres. Various estimates were given by witnesses as to the increase of the flow of the water since these changes. The chancellor found that the additional drainage created by the appelees has not greatly added to the burden imposed on the land of the appellants. The chancellor said 'the defendants' witnesses testify that the difference in flow, as observed by them in dry weather, is that, whereas the ditch near their buildings formerly was entirely dry, now in the summer time, two or three inches of water is in the bottom of the ditch.' In fact, Mrs. Elnora C. Bishop, one of the appellants, when asked on cross-examination about the flow of the water before the changes made by the Richards, stated that there was 'a pretty good stream there in the winter time and a few months in the summer, then it was dry.' When asked by the chancellor on direct examination whether the increase in the water 'does any harm because it runs in July or because it runs swifter in the wintertime,' she replied: 'No, it doesn't do any harm but it goes to show there's more water down that ditch than before.'
The appellants also offered testimony that a large quantity of water in the spring of 1948 came down from the Richard farm and inundated a...
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