Irvine v. Montgomery County

• Decision Date: 27 May 1965
• Docket Number: No. 310,310
• Citation: 210 A.2d 359,239 Md. 113
• Parties: H. Winfree IRVINE et ux. v. MONTGOMERY COUNTY, Maryland.
• Court: Maryland Court of Appeals

Page 113

239 Md. 113

210 A.2d 359

H. Winfree IRVINE et ux. v. MONTGOMERY COUNTY, Maryland.

No. 310.

Court of Appeals of Maryland.

May 27, 1965.

David L. Cahoon, Rockville, for appellants.

Robert G. Tobin, Jr., County Atty., and Douglas H. Moore, Jr., Deputy County Atty., Rockville, for appellee.

Before PRESCOTT, C. J., and HORNEY, MARBURY, OPPENHEIMER and BARNES, JJ.

OPPENHEIMER, Judge.

The appellants, seeking injunctive relief for alleged damages to their property through continuous diversion of surface waters and denial of use of a public road, appeal the dismissal of their bill of complaint as to Montgomery County. The lower court held, as a matter of law, on the pleadings, that the County is immune from suit for the acts alleged against it, because it was exercising a governmental function.

The bill of complaint alleged that the plaintiffs are the owners of a tract of land in Montgomery County of some five and three quarters acres, known as 'Walkers Mill Tract.' The tract has been served by a public road, 'Walkers Mill Road', for many years. The bill was filed against Francis L. Harding and Lucille M. Harding and Old Farm Real Estate Corporation, the owners of certain land to the east of the appellants' tract, who had adopted a plan of subdivision for their land; Mr. and Mrs. William I. Thomson, who, it is alleged, participated in the acts complained of; and the County. The essential facts alleged against the County are that it approved the plat of subdivision as to road and street grades; that the excavation, grading and paving of the streets was carried out pursuant to the requirements of and under the supervision of its Department of Public Works; that it has permitted the other defendants to regrade, fill and completely obstruct a public road; that as a consequence the appellants have been denied access to their lands; and that the excavation, grading and paving of streets has unlawfully diverted surface water to the continuing injury of the appellants.

The Old Farm Real Estate Corporation, the Hardings and the Thomsons demurred to the bill and the Thomsons moved for summary judgment. The County filed a motion raising the preliminary objection of governmental immunity under Maryland Rule 323, and also filed an answer to the bill. The court below, after argument, sustained the demurrer of Old Farm Real Estate Corporation, denied the motions of the Thomsons for summary judgment, overruled the demurrers of the Thomsons and the Hardings, and dismissed the bill against the County. In the order of dismissal, Judge Pugh stated he was satisfied by the record of the proceedings that the County was exercising a governmental function and was therefore immune from suit, and that he was of the opinion the matter should be decided under Maryland Rule 502 rather than Rule 323.

A preliminary question raised by the appellants is whether the court erred in proceeding under Rule 502. That rule reads in part as follows:

'a. Question of Law--Stat--Appeal.

'At any stage of the action, the court may, on application of any party or of its own motion if it shall appear that there is a question of law which it would be convenient to have decided before going further, direct such question to be raised for the court's decision in such manner as the court may deem expedient.'

Rule 323 b and c provides that the defense of governmental immunity shall be raised by motion before any pleading on behalf of the party making the motion is filed. This the County did. The court, on its own motion, proceeded to decide the question of law involved under Rule 502, because it appeared to the judge that it would be convenient to have the question decided under that Rule. By so doing, the court hald all the pleadings before it. No evidence was taken; the question of law was decided on the pleadings. The appellants contend that, as a matter of law, the trial court was in error in deciding that the County was immune for the acts alleged against it. That question is before us. The purpose of Rule 323 is to have a legal question, such as this, decided before trial of the action on its merits, and this purpose has been accomplished. Compliance with procedural regulations is essential to the fair and efficient administration of justice, but it is the substance of compliance and the fair treatment of the parties, which are determinative. See Board of County Commissioners for Prince George's County v. Kines, Md., 210 A.2d 367 (This Term, just decided). Here, those requisites have been met.

The case turns on which of the two legal principles pertaining to governmental immunity is applicable. There can be no recovery in Maryland against a municipal corporation for injuries occasioned by its negligence or nonfeasance in the exercise of functions essentially governmental in character, but the political subdivision is liable if it fails to prevent a public nuisance in respect of a public right of way or other property which it owns or maintains. Foweler v. Bd. of Co. Comm'rs, 230 Md. 504, 507, 187 A.2d 856 (1963) and cases therein cited.

The appellants' bill of complaint alleges that the County approved the subdivision plat submitted by the private...