City of Baltimore v. Landay

• Decision Date: 07 July 1970
• Docket Number: No. 136,136
• Citation: 258 Md. 568,267 A.2d 156
• Court: Maryland Court of Appeals
• Parties: Mayor and CITY Council OF BALTIMORE et al. v. Albert LANDAY et ux.

Page 568

258 Md. 568

267 A.2d 156

Mayor and CITY Council OF BALTIMORE et al. v. Albert LANDAY et ux.

No. 136.

Court of Appeals of Maryland.

July 7, 1970.

Howard E. Wallin, Richard K. Jacobsen, Asst. City Sols. and James B. Murphy, Sp. Asst. City Sol. (George L. Russell, Jr., City Sol. and Ambrose T. Hartman, Deputy City Sol., Baltimore, on the brief), for Mayor and City Council of Baltimore.

Harry S. Shapiro, Asst. County Col. (R. Bruce Alderman, Co. Sol., Towson, on the brief), for Baltimore County, Md.

Charles C. W. Atwater, Baltimore (Mylander & Atwater, Baltimore, on the brief), for appellees.

Argued before HAMMOND, C. J., and McWILLIAMS, FINAN, SINGLEY, SMITH and DIGGES, JJ.

HAMMOND, Chief Judge.

In 1941 Albert Landay and Cele Landay, his wife, the appellees, bought some fifteen acres of law land south of Pulaski Highway running from North Point Road to Herring Run. Over the years, they filled much of the land and caused it to be improved by a number of buildings which they rented to trucking firms and for other commercial uses at substantial rentals. From time to time during these years Herring Run overflowed causing damages to land and buildings of the Landays (resulting from decreased rentals and clean-up and repair expenses) estimated by them to be some $300,000. In 1956 they filed a bill of complaint in the Circuit Court of Baltimore City against the Mayor and City Council of Baltimore (City) and the County Commissioners of Baltimore County, (County) which, as subsequently amended, alleged that Herring Run begins in Baltimore County, runs through the City and then back into the County to empty into Moore's Run and Back River, that City and County each had adopted Herring Run as part of its storm drainage system, thus canalizing large additional quantities of water into the stream, that both City and County had failed to adapt the Run to its new and greater responsibilities and as a consequence the stream had become clogged with silt and debris and was thereby caused to flood the Landay property when the rains came.

The prayers for relief were that City and County be enjoined from depositing on the property water which had not formerly flowed over it, or, alternatively, that City and County be required to control and maintain Herring Run as part of their respective storm water systems so as to provide adequate and contained passage of water each had concentrated, without damage to private property.

Various and elaborate discovery proceedings were had by the Landays, the City and the County. On October 26, 1960, the parties executed a settlement agreement (the contract) under which the City and the County denied that they were legally liable either for past damages or to prevent future flooding, and the parties agreed that the execution of the settlement agreement would not constitute an admission of liability by City or County in the past or in the future. It was then recited that:

'Whereas, the City and County have agreed to undertake certain work which is hereinafter set forth in this Agreement, and in consideration of such undertaking by the City and the County, the Landays have agreed to dismiss the above described proceedings which the pending in the Circuit Court of Baltimore City and to release the Defendants from all claims therein made for damages, as is hereinafter more specifically set forth.'

The County promised that within twenty days it would commence to clear and grub the bed of Herring Run from the City-County line to the confluence of the Run and Moore's Run, the work to be completed as expeditiously as possible.

Simultaneously, a pilot channel with a bottom width of twenty-five feet would be excavated and constructed along the same route and completed within six months. The County further promised that starting at once it would proceed to acquire, by negotiation if possible, the necessary rights-of-way for a permanent channel (the width, depth and shape specified in detail) from the City-County line to the conflucence of Herring Run and Moore's Run, and:

'If the County has not acquired by negotiation the necessary rights-of-way for said channel within three (3) months after the execution of this Agreement, the County will then immediately institute condemnation proceedings and will prosecute the same diligently in order to acquire said rights-of-way as expeditiously as possible until all of such necessary rights-of-way are acquired. * * * The County covenants and agrees that all work described in this paragraph shall be completed by the County within nine (9) months after all necessary rights-of-way for the said channel have been finally acquired.'

The City promised to construct forthwith a pilot channel twenty-five feet wide from a named critical point to the City-County line, it being agreed that the pilot channel 'shall be constructed in cooperation with and as nearly simultaneously as possible with the construction of the pilot channel by Baltimore County * * *,' and that the pilot channel would be completed within seven months.

The City also agreed to proceed to acquire by negotiation, if possible, the necessary rights-of-way for a permanent channel (described in specific detail) and if it did not acquire them within three months after the date of the agreement 'the City will then immediately institute condemnation proceedings and will prosecute the same diligently in order to acquire said rights-of-way as expeditiously as possible until all necessary rights-of-way are acquired. * * * The City agrees that the construction of the permanent channel shall proceed as rapidly as possible and is intended to be performed as nearly as possible in coordination with the construction of the permanent channel by the County, as otherwise provided in this Agreement, and said construction by the City shall be completed no later than eleven (11) months after all necessary rights-of-way for said channel have been finally acquired by the City.'

City and County both agreed:

'that they will within their respective jurisdictions exert their best efforts to maintain a stream bed level in the permanent channel provided for in this Agreement with the elevations not more than one (1) foot higher than those set forth in this Agreement and with an effective width approximately the same as is provided in this Agreement.'

The Landays executed an order of dismissal as to the City and an order of dismissal as to the County and delivered one to counsel for the City and one to counsel for the County 'as independent escrow agents.' The orders were to be filed in the proceeding when the work was substantially completed as agreed upon and then were to operate as a release of all claims for prior damages.

It was further agreed that if the work required 'is not performed by the times specified herein,' the orders of dismissal should not operate as releases.

Performance by the City and the County was uneven for a time. The City was prompt in constructing the pilot channel, the County was not, and the blockage downstream in the County largely nullified the benefit of the City's work. If no condemnation proceedings were necessary, the City had fourteen months-until December 26, 1961-and the County twelve months-until October 26, 1961-to fulfill their respective obligations to construct a permanent channel, and neither met that obligation on time.

On December 29, 1961, the Landays filed a supplemental bill alleging that neither the City nor the County had acquired the necessary rights-of-way, neither had instituted any condemnation proceeding, that the Landay property had been damaged as a result of flooding on several occasions since the execution of the agreement of October 26, 1960, and that they were entitled to 'monetary compensation for said damages which have accrued and which may hereafter accrue prior to the date of a decree to be entered herein.' There followed this language:

'The said Agreement of October 26, 1960, specified in detail the nature and extent of the work to be performed by Baltimore City and Baltimore County to the end that Herring Run should be properly maintained and controlled, such as the width, elevation, location, and type of construction of the new bed of the stream, which details were agreed upon by the Complainants and the Defendants after lengthy studies by experts employed by each and numerous conferences attended by counsel and engineers employed by the Complainants and the Defendants; the Complainants are advised and believe that the work so specified is necessary and proper to provide an adequate storm water sewer to carry the waters flowing in Herring Run to its confluence with Back River and thereby prevent further damage to the property of the Complainants.

'Wherefore, the Complainants pray that this Honorable Court may by its Decree:

'(a) Order the specific performance by the Mayor and City Council of Baltimore and by Baltimore County, Maryland of the covenants and agreements on their part to be performed pursuant to the said contract entered into between the Complainants and the Defendants dated October 26, 1960.

'(b) Or, in the alternative, require the Defendants, Mayor and City Council of Baltimore, and Baltimore County, Maryland, properly to control and maintain Herring Run as part of the storm water system of said City and of said County so as to prevent the creation of a nuisance and to prevent damage to private property and to provide by adequate means for passing off the water concentrated and collected by said City and said County.

'(c) Award to the Complainants reasonable damages to compensate them for the damage they have suffered as the result of the failure of the Defendants to perform the covenants and agreements on their part agreed to be performed by the said Agreement of October 26, 1960.

'(d) Award of the Complainants reasonable damages to compensate them for the injury and damage they have suffered as the result of the...