Finley v. Teeter Stone, Inc.

• Decision Date: 19 November 1968
• Docket Number: No. 355,355
• Citation: 251 Md. 428,248 A.2d 106
• Parties: George M. FINLEY et ux. v. TEETER STONE, INC.
• Court: Maryland Court of Appeals

Page 428

251 Md. 428

248 A.2d 106

George M. FINLEY et ux. v. TEETER STONE, INC.

No. 355.

Court of Appeals of Maryland.

Nov. 19, 1968.

Carl H. Lehmann, Jr., Baltimore, for appellants.

Richard A. Reid, Towson (Royston, Mueller, Thomas & McLean, Towson, and Charles O. Fisher and Walsh & Fisher, Westminster, on the brief), for appellee.

Before HAMMOND, C. J., and BARNES, McWILLIAMS, SINGLEY and SMITH, JJ.

BARNES, Judge.

This appeal involves a claim for damages alleged to have resulted to at least 35 acres (and possibly 57 acres) of improved farmland in Carroll County. The land in question is owned and occupied by the appellants, George M. Finley and Elizabeth Englar Finley, his wife, (Finleys), who claim that the quarrying operations of the appellee, Teeter Stone, Inc. (Teeter) on adjacent land has resulted in the Finleys' land being dewatered, thereby causing damage by reason of substantial subsidence. The Circuit Court for Carroll County (Macgill, C.J.), at the end of the case presented by the plaintiffs, the Finleys, directed a verdict for the defendant, Teeter, and granted a judgment for costs in Teeter's favor. From this decision, the Finleys have taken a timely appeal.

The facts are presented by an agreed statement of the case pursuant to Maryland Rule 826 g and are not in dispute.

The Finleys own and occupy a farm of 282.44 acres located on Stone Chapel Road in the Wakefield Valley in the New Windsor and Westminster Election District of Carroll County. Teeter owns a large tract of land located immediately adjacent to the southwest line of the Finley land. Since 1958 Teeter has operated a stone quarry on its land and conducts stone crushing operations and other related activities directly connected with the mining and refining of stone. Teeter's land consists of approximately 100 acres and is roughly rectangular in size. Since beginning its quarrying operations in 1958 it has gradually enlarged its quarry pit so that it now extends virtually from border to border of its tract and to a depth of some 80 feet. In the course of conducting its quarrying operations it is necessary for Teeter to keep its excavation dry by continually pumping out the water that accumulates in its quarry pit.

The testimony of James A. Humphreyville, a well qualified consulting geologist, was presented on behalf of the Finleys and is not contradicted in this case. His testimony established that the rock formation into which the quarry pit was sunk was limestone which has been named Wakefield Marble. The stone which is quarried is used for road stone and other purposes.

By boring operations on the Finley property, the consideration of other data and the exposure in the Teeter quarry, the extreme differential solution and erosion in the form of irregularly shaped pinnacles and spires is demonstrated. In the area under consideration the striking dipping nature of the rock formation has also contributed to the saw-toothed top of the rock profile. In addition, the rock mass in charactrized by joining, fracturing, faulting and voids resulting from this saw-toothed top of the rock profile.

The geologist observed that sink holes related to limestone areas generally and to the Wakefield Valley specifically are not unusual. He demonstrated, however, that the likelihood of the occurrence of sink holes in the 35 acres of the Finley land, now subject to subsidence, in the absence of the removal of water, was negligible. This area was approximately five feet superior to the level of the natural water table. Inasmuch as the land in question was at the low point of the local portion of the Valley, the movement of ground water in its natural state was slow but the excavation of the quarry and the pumping of water by Teeter caused the velocity of the flow toward the quarry sump to be substantially increased. This action resulted in the dislodging of soils forming the roofs of the solution channels as well as causing soils from the clay mantle to be removed by percolation and flow, thus leaving voids causing subterranean and surface collapse.

The rock, itself, is impervious, but because of the cracks, solution channels (most of them interconnected), cavities, joints and fractures, the formation as a whole is highly permeable by water. The pumping from the quarry has resulted in a 'draw-down' of the water table so that there is a shallow 'cone of depression' reaching under the Finley land. This lowering of the water table causes the water support for the saturated clay to be removed so that the clay in the plugs on the solution channels begins to move out and is carried away by the water into lower positions on the solution channels. In other situations the dropping of the water table may not directly wash away the clay plugs but allows the clay plugs to desiccate as they are no longer in contact with water. As the overlying mantle of soils over the bed rock in this area varies from 17 to 30 feet, a vault, unsupported by earth, is then formed and may be three, four or even ten feet high. The diameter may be up to 15 feet and when the rain comes in the late winter or early spring, the sudden rush of water infiltrates and saturates this clay and precipitates a series of collapses. These propagate upwards until the surface of the land caves in and causes sink holes. This has resulted in the sink holes on the 35 acres of the Finley land which were the basis of the study and principal testimony of the geologist in this case. The photographs introduced into evidence indicated the severe nature of the sink holes which had occurred on the 35 acre tract. There was evidence of a qualified real estate appraiser that the land of the Finleys had been substantially damaged as a result of the sink holes.

There was no contention by the Finleys that Teeter interfered with any underground bodies or streams of water flowing in known and defined or ascertainable channels or courses as opposed to percolating waters. Nor was there any contention by the Finleys that Teeter had acted in a negligent manner in the operation of its quarry, including the necessary pumping of water from it. All of the subsidence occurred entirely on the Finley land. Teeter's excavations did not cause any loss of lateral support of any of the Finley land immediately adjacent to the line of the quarry property. As already indicated, the trial court upon Teeter's motion, and after considering trial memoranda of the parties, directed a verdict for Teeter at the end of the Finleys' case because in its opinion the Finleys were not entitled to recover damages from Teeter as a matter of law. The trial court filed a well considered written opinion in denying the motion of the Finleys for a new trial, stating the reasons for its action. We agree with the conclusion of Chief Judge Macgill and will affirm the judgment for Teeter for costs.

As the present case involves the use of subterranean water, we will now consider the law applicable to such waters.

Subterranean waters are generally considered to be of two distinct types: (1) underground streams and (2) percolating waters. To be classified as an underground stream, the water must flow in a definite and fixed channel whose existence and location is either known or may be ascertained from indications on the surface of the land or by other means without subsurface excavations to determine such existence and location. See Washington County Water Co. v. Garver, 91 Md. 398, 407-409, 46 A. 979, 981 (1900). See also Clinchfield Coal Corp. v. Compton, 148 Va. 437, 447-448, 139 S.E. 308, 311, 55 A.L.R. 1376, 1381 (1927); Evans v. City of Seattle, 182 Wash. 450, 453-454, 47 P.2d 984, 985 (1935); 56 Am.Jur. Waters § 108 at 591 (1945); 92 C.J.S. Waters § 86 at 761 (1956).

Percolating waters, on the other hand, are those 'which ooze, seep or filter through soil beneath the surface, without a defined channel, or in a course that is unknown and not discoverable from surface indications without excavation for that purpose. The fact that they may, in their underground course, at places come together so as to form veins or rivulets does not destroy their character as percolating waters.' Clinchfield Coal Corp. v. Compton, supra, 148 Va. at 446, 139 S.E. at 311, 55 A.L.R. at 1381; see also United Fuel Gas Co. v. Sawyers, 259 S.W.2d 466, 467, 38 A.L.R.2d 1261, 1263-1264 (Ky.1953); Canada v. City of Shawnee, 179 Okl. 53, 54, 64 P.2d 694, 696 (1936); C & W Coal Corp. v. Salyer, 200 Va. 18, 22-23, 104 S.E.2d 50, 53-54 (1958); 56 Am.Jur. Waters § 111 at 593 (1945).

Unless it can be shown that the 'underground water flows in a defined and known channel, it will be presumed to be percolating water.' Clinchfield Coal Corp. v. Compton, supra, 148 Va. at 448, 139 S.E. at 311-312, 55 A.L.R. at 1381-1382. Accord, Western Maryland R. R. Co. v. Martin, 110 Md. 554, 566-567, 73 A. 267, 272 (1909). See generally McGowan v. United States, 206 F.Supp. 439, 442 (D.Mont. 1962); Canada v. City of Shawnee, supra, 179 Okl. at 54, 64 P.2d at 696; 93 C.J.S. Waters § 87 at 762 (1956). While normally the use of underground streams is governed by the same law as applies to those waters flowing in defined and fixed channels above the surface, see e. g., Sycamore Coal Co. v. Stanley, 292 Ky. 168, 166 S.W.2d 293 (1942); McGowan v. United States, supra, 206 F.Supp. at 442; see generally 93 C.J.S. Waters § 89 at 763 (1956); 56 Am.Jur. Waters § 109 at 591 (1945), a separate and sitinct body of law has developed governing the use of percolating waters.

In view of the agreed statement of facts, already mentioned, as well as the answers to interrogatories by the Finleys, together with the evidence in the lower court, it is clear that there has been no suggestion that the waters with which we are concerned are anything other than percolating.

There are two basic lines of authority applicable to the use of percolating waters. The first is known as the English Rule, and was first...