Mackie v. Mayor and Com'rs of Town of Elkton, 306

• Citation: 265 Md. 410,290 A.2d 500
• Decision Date: 10 May 1972
• Docket Number: No. 306,306
• Parties: Richard D. MACKIE et al. v. MAYOR AND COMMISSIONERS OF the TOWN OF ELKTON.
• Court: Court of Appeals of Maryland

Page 410

265 Md. 410

290 A.2d 500

Richard D. MACKIE et al. v. MAYOR AND COMMISSIONERS OF the TOWN OF ELKTON.

No. 306.

Court of Appeals of Maryland.

May 10, 1972.

Frank Thomas Howard, Elkton (Wm. Wilson Bratton, Elkton, on the brief), for appellants.

O. Robert Lidums, Elkton (Edward D. E. Rollins, Jr., Elkton, on the brief), for appellee.

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

McWILLIAMS, Judge.

The appellant (Mackie) owns and farms a number of acres in the northeast corner of Cecil County about a mile from the Mason and Dixon line. This 'rolling and scenic' countryside is drained by Little Elk Creek and a number of its small but picturesque tributaries. For this very reason the town of Elkton, the county government, and the United States Department of Agriculture have in mind building, on Mackie's land, a dam to impound the waters of Little Elk Creek. That Mackie takes a very dim view of this is a gross understatement.

This dispute arises out of the appellees' demand that Mackie allow their agents to enter upon his property to make 'certain preliminary geological investigation(s).' They informed Mackie that they had a legal right to make such investigations and that they would go to court if he refused. He did and they did. Suit to compel Mackie to permit entrance upon his land was filed on 11 August 1971.

The parties have agreed that the proposed geologic investigations entail core drilling to ascertain the condition of the strata of underlying rock and the digging of large, deep pits with a backhoe to assay the quality and availability of fill material for the earthen embankments of the proposed reservoir. The core drilling operation is described as follows:

'Core drilling investigations entail boring test holes (4-8 inches in diameter) into the underlying rock strata at depths of 50 feet to maybe even 150 feet. This core drilling is done with machines similar to well drilling machines. Normally a 'skid rig' or mounted rubber tire core drilling machine is used. Water is normally pumped from a stream to the core drilling machine to reduce abrasion and friction on the core drilling bit while drilling the holes. Core samples are recorded on a sheet and placed in a box for future examination and analysis.

'Once the drilling is complete, a piezometer is placed in the hole. This instrument is used to measure the depth of ground water at different times during the year. Normally the top of the piezometer is cut off at ground level or it may extend any where from one to four feet above the ground.'

What follows is a description of the role of the backhoe:

'Backhoe investigations are performed to find potential borrow material and to determine the best location for constructing the principal spillway (or overflow) pipe. Backhoe pits are about 3 feet wide, 12-14 feet deep, and approximately 20 feet long. A rubber tire backhoe machine is usually used to dig these pits.

'During excavation, soil from these pits is stockpiled next to the pits. Before the pits are backfilled, a government representative from the USDA, Soil Conservation Service, records the type and depth of soil material which is available at that pit. The holes are then backfilled. Seldom is one able to put all of the soil back into the pit. Therefore, the top of the pit is mounded to allow for future settlement.

'During the backhoe investigations, existing vegetation (ground cover) and/or crops may be damaged. With this understanding, the Elk Creek Watershed Steering Committee and the local sponsors, namely, the Cecil Soil Conversation District, the Cecil County Commissioners, and the Town of Elkton, assume the responsibility for placing the ground back under vegetable cover. Furthermore, they realize it will be necessary to compensate landowners for damages to existing crops and/or any other damages which might occur.

'In performing these investigations it is necessary for daily travel to and from each investigation site on the property. The total elapsed time on each property depends on the number of drill holes and backhoe investigation pits. It is estimated that each drill hole will take from 3-4 days to complete. Each backhoe pit normally takes 2-3 hours to complete. During the operation of these geologic investigations, it is important to note that both the contractor and the Soil Conservation Service will make every effort possible to cause no more damage than is absolutely necessary.'

Three core-drilling sites and 21 pit locations are shown on the topographic map filed as an exhibit. The pit locations are scattered over an area about one-half mile long and one-quarter mile wide. Most of them will be in open crop or pasture land. That the peace and tranquility of the area will be disturbed is beyond question. The heavy equipment required for the purpose will have to be moved over the fields and through the woodland. The property will be invaded by a steady stream of workmen and supervisors. Trees, brush, cover and some crops will be disturbed or destroyed.

The right of the appellees to do what they propose to do depends upon what we think the Legislature had in mind when it enacted Section 11 of SECTION 1 of Chapter 52 of the Laws of Maryland of 1963, now Code (1971 Repl. Vol.), Art. 33A, § 11, which provides as follows:

'(a) Right of entry; right to set stakes, etc.-Civil engineers, land surveyors and their assistants acting on behalf of the State or of any of its instrumentalities or of any body politic or corporate having the power of eminent domain have the right:

'1. To enter upon any private land to make surveys, to run lines or levels, or to obtain information relating to the acquisition or future public use of the property or for any governmental report, undertaking, or improvement, and

'2. To set stakes, markers, monuments, or other suitable landmarks or reference points where necessary.

'(b) Order to permit entry.-If any civil engineer, surveyor, or assistant to a civil engineer or surveyor is refused permission to enter or remain upon any private land for the purposes set out in subsection (a) hereof, any such person, or the State or its instrumentality, or the body politic or corporate upon whose behalf such person is acting may apply to a law court of the county in which the property or any part thereof is located for an order directing that such person be permitted to enter upon and remain upon such land to the extent necessary to carry out the purposes authorized by this section. Any person having knowledge of such order who obstructs any civil engineer, surveyor, or assistant to a civil engineer or surveyor who is acting under authority of such order may be punished as for contempt of the court.

'(c) Damage to or destruction of property.-If any civil engineer, surveyor, or assistant to a civil engineer or surveyor who has entered upon any private land under the authority of this section or of any court order passed pursuant thereto, damages or destroys any real or personal property thereon, the owner of such property shall have a cause of action for such damages against such civil engineer, surveyor, or assistant and against the State, its instrumentality, or the body politic or corporate upon whose behalf the person inflicting such damage was acting.

'(d) Obliterating, damaging or removal of stake, marker, etc.-Any landowner or other person who wilfully obliterates, damages, or removes any stake, marker, monument, or other landmark set by any such civil engineer or surveyor acting pursuant to this section, except where such stake, marker, monument or other landmark interferes with the proper use of the property, shall be guilty of a misdemeanor and upon conviction shall be fined not more than five hundred dollars ($500.00).'

The trial judge, Roney, J., thought the phrase 'to obtain information relating to the acquisition or future public use of the property or for any governmental report, undertaking, or improvement' broad enough 'to cover the right to make such tests.' Accordingly Mackie was enjoined from taking any steps to bar the entry of the appellees upon his land.

It is entirely clear, we think, that since the words chosen by the Legislature do not circumscribe what one may do 'to obtain information' their meaning is less than clear. Surely it is neither plain nor unambiguous. If we are to resolve this ambiguity or opacity, at least in respect of its impact on the case at bar, we must consider the facts of contemporary history, the prior state of the law, and what, if any, particular evil, abuse or defect § 11 was designed to correct and the remedy which was intended. Clerk of Circuit Court for Calvert County v. Chesapeake Beach Park, Inc., 251 Md. 657, 663, 248 A.2d 479 (1968); Department of Tidewater Fisheries v. Sollers, 201 Md. 603, 611, 95 A.2d 306 (1953).

It is difficult, perhaps impossible, to say what, if any rights civil engineers and surveyors may have had to enter upon private property prior to the Act of 1916, infra. In Steuart v. Mayor and City Council of Baltimore, 7 Md. 500, 516 (1855), Judge Eccleston, for the Court, said:

'Prohibition against taking private property until payment or tender of compensation is first made, and the right to have the amount of compensation settled by a jury or by agreement, are the important rights designed to be secured to the owners of property by the present constitution. And although the proposed street has been surveyed, the survey reported, and the damages and benefits assessed, yet the appellant's land has not been taken, in the legal sense of that word. Bonaparte vs. The Camden & Amboy Railroad Co. (Fed.Cas.No.1,617), 1 Baldwin's C.C.Rep. (205), 226. The constitutional prohibition against taking private property for public use, until compensation is first paid or tendered, means taking the property from the owner, and actually applying it to the use of the public. It does not mean the...