Slaird v. Klewers, 124

• Decision Date: 08 December 1970
• Docket Number: No. 124,124
• Citation: 271 A.2d 345,260 Md. 2
• Parties: , 49 A.L.R.3d 538 Sarah E. SLAIRD v. Reinhold J. KLEWERS et al.
• Court: Maryland Court of Appeals

Page 2

260 Md. 2

271 A.2d 345, 49 A.L.R.3d 538

Sarah E. SLAIRD v. Reinhold J. KLEWERS et al.

No. 124.

Court of Appeals of Maryland.

Dec. 8, 1970.

Allan Sosslau, Chevy Chase (Friedman & Lipshultz, Chevy Chase, on the brief) for appellees.

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

BARNES, Judge.

This appeal involves a controversy between two next-door neighbors owning and occupying homes at 2712 and 2714 Harmon Road, Oakland Terrace, Silver Spring, Montgomery County. The principal cause of the dispute is the building of a swimming pool by one of the neighbors.

The appellant, Sarah E. Slaird, and her husband, Walter J. Slaird (who died pending the litigation), owned the property 2712 Harmon Road as tenants by the entireties, prior to filing the suit in equity involved in this case on November 27, 1967, in the Circuit Court for Montgomery County against the appellees, Reinhold J. Klewers and Patricia E. Klewers, his wife, who owned the property 2714 Harmon Road. The Slairds had occupied the 2712 Harmon Road property for approximately 21 years. During that occupancy, Mr. and Mrs. Slaird, at a substantial expenditure of both effort and money, beautified their property by seeding, planting shrubs, plants and flowers as well as by enclosing it with a fence.

In the bill of complaint the Slairds alleged that the Klewers, who had occupied the property 2714 Harmon Road for approximately one year, in May and June 1967, installed a swimming pool and patio with a diving board in the rear of the Klewers property, near the Slaird property. This allegedly changed the elevation and sloping of the Klewers property thereby injuring the Slairds, causing an unpleasant odor and depriving the Slairds of the use and enjoyment of their property which they had previously enjoyed. As a result of the splashing of chlorinated water from the use of the swimming pool, this treated water, it was alleged, came onto the Slaird property causing further damage. It was also alleged that the flood lights erected on the Klewers property in connection with the swimming pool as well as the loud noises generated by its use interfered with the Slairds' use of their own property, caused a nuisance and depreciated the value of the Slaird property. In the bill of complaint it was prayed that (1) the Lewers be enjoined, pendente lite and permanently, from continuing the condition alleged; (2) the Klewers, by mandatory injunction, be required to 'relevel' their ground and yard so that water will not drain off onto the Slaird property and the use of the swimming pool as a nuisance be enjoined; (3) the Slairds be awarded damages for their injuries and loss of use in the amount of $10,000; and (4) the Slairds have other relief.

The Klewers answered the bill of complaint in due course denying the change of grade so as to cause water to drain across the Slaird property, denying that the use of the swimming pool was a nuisance and alleging that the pool was installed properly in accordance with the provisions of the Montgomery County Code, that the Klewers had installed a dry well (although not necessary) to eliminate surface water that naturally flowed from their property to that of the Slairds, that they had used the pool in a careful and considerate manner limiting the hours of use in the evening and the number of persons using it in order to be 'good neighbors,' and that the Slairds were guilty of laches.

At the trial of the case before Judge H. Ralph Miller in the Circuit Court for Montgomery County, there was substantial testimony taken and a number of exhibits-mostly photographs-were introduced into evidence. There was, however, no expert testimony offered by Mrs. Slaird, the surviving plaintiff, and little offered on behalf of the Klewers.

In regard to the location of the two properties, the testimony established that Harmon Road runs east and west, the residences involved in this case being on the south side of Harmon Road and facing north. The Klewers property is on the west side of the Slaird property. West of the Klewers property is land owned by Montgomery County on which stands the Oakland Terrace School (the county property). Each of the Slaird and Klewers properties is approximately 60 feet wide on Harmon Road and 155 feet deep. The front building line of each property is approximately 38 feet from Harmon Road; their respective back yards are approximately 98 feet deep. Both houses are approximately 23 years old and were erected at about the same time. The Slairds were original purchasers of their property when the house was erected about 1947. The Klewers purchased their property in 1966; the previous owner was named Sokoloff.

From the front of the two houses on Harmon Road the land sloped slightly toward that road. When the residences were built twenty-three years ago, the land behind them was woods. The surface water flowed across the Klewers property in a southeasterly direction to the rear of the Slaird property where it drained into the woods and down an old wagon trail. In 1957, the land on which the old wagon trail was located was developed and the Mancuso dwelling was erected. After this construction, the Slairds began to have drainage problems. To rectify this, a swale was constructed on the Mancuso property to drain away the excess surface water from the Slaird and Klewers properties. Several years later, the construction of a patio and sidewalk on the Mancuso property blocked the swale and this caused some surface water to accumulate on the Slaird property.

In May 1967, the Klewers signed a contract with John's, Inc.-a third party defendant in the suit in the lower court but not a party to this appeal-to construct a swimming pool on their property. John A. Trouth, Jr., who installed the swimming pool, testified that he tried his best to maintain the natural slope and flow of surface water on the property and, to meet the complaints by the Slairds, by constructing a new drainage swale in accordance with a recommendation of the Montgomery County building inspector. The new drainage swale was installed along the property line between the Slaird and Klewers properties and was lined with Orangeburg pipe, a perforated pipe which allows water to seep through the pipe along its entire distance. Mr. Trouth further testified:

'With the barren piece of land I would say, from my experience in building pools and clearing land like this, that there should not have been as much water drained as had existed previously, particularly in a case where we completed the area to avoid any mud runoff or anything of that nature.'

After the construction of the swimming pool, he never saw any evidence of any water build-up when he returned to the site.

Charles Butler, who at the time of the construction of the swimming pool was a building inspector for Montgomery County, testified that the pool and construction of drainage was inspected by him, was located and constructed in accordance with the county regulations, and that his...