Superior Const. Co. v. Elmo

• Decision Date: 10 February 1954
• Docket Number: No. 44,44
• Parties: , 48 A.L.R.2d 932 SUPERIOR CONST. CO. et al. v. ELMO et ux.
• Court: Maryland Court of Appeals

Page 1

204 Md. 1

102 A.2d 739, 48 A.L.R.2d 932

SUPERIOR CONST. CO. et al. v. ELMO et ux.

No. 44.

Court of Appeals of Maryland.

Feb. 10, 1954.

W. Lee Harrison, Towson (Michael Paul Smith, Towson, on the brief), for appellants.

Morris D. Hyman and Melvin J. Sykes, Baltimore (Melvin S. Silberg, Baltimore, on the brief), for appellees.

Before SOBELOFF, C. J., and DELAPLAINE, COLLINS, HENDERSON and HAMMOND, JJ.

SOBELOFF, Chief Judge.

This suit was filed in the Circuit Court of Baltimore City by the appellees, owners of 1121 Overbrook Road, who occupied it as their home. It is situated on the Baltimore County side of the boundary line between Baltimore County and Baltimore City. The bill prayed an injunction against the appellant corporations and claimed damages for injury to the appellees' property caused by the debris, mud, and silt continually deposited on the appellees' property as a result of the appellants' large building operations on contiguous land in Baltimore City. The Chancellor found that the appellees were entitled to injunctive relief and, in addition, granted both compensatory and punitive damages. From the award of damages, the appellants appeal. They contest the jurisdiction of the Circuit Court of Baltimore City to award damages with respect to land in Baltimore County and they dispute the measure of damages adopted by the Chancellor.

The appellees' property consists of a rather large lot improved by a dwelling. A small stream ran through the rear of the property. The appellants' land sloped downward toward the stream which flowed through the low valley formed by the slope of the appellants' property on one side and the appellees' property on the other. Prior to the events complained of the appellants' property was covered with natural soil, sod and underbrush, and had trees on it. There was a gentle natural flow of water that came down the incline. In the course of the appellants' building operaions, begun early in 1952 as a part of their plans for the erection of dwellings on a tract of some twenty-four acres, they cleared the protective growth and sod from their property and excavated and filled so as to materially increase the slope of the hill leading down to the stream. The Chancellor found 'The flow of the water in its natural state has also been changed to the extent that the flow is quite different from what it formerly was. Formerly it was rain water that trickled down on the site through the underbrush, but now it has been converted into water that comes down from raw earth that has been piled on the defendant's land adjacent to the plaintiff's property very much higher than the elevation that previously existed, and as a result, in a hard rainfall this dirt is washed down and stones could be washed down if there were any stones there, and it forms mud and silt on the plaintiff's property.' The Chancellor also found that appellants 'intentionally and negligently dumped the entire load of excess drainage from its building operations' on appellees' property, and that the appellants 'took no measures to alleviate in any degree the damage.'

The appellees were forced to move from the property in July, 1952, and it was thereafter vacant at least until the hearing.

I

Appellants concede that an equity court of Baltimore City had the power to grant injunctive relief; but on the question of damages they contend that it was without jurisdiction because the property is situated in Baltimore County. They maintain that this is a local, as distinguished from a transitory, action and that it may properly be brought only in the County court. Appellees' answer is that appellants' contention challenges only the venue and that by their failure to make timely objection in the trial court to the bringing of a local action in a forum other than that of the situs of the subject matter they have waived the point.

The distinction between local and transitory actions still exists in Maryland, and equally well settled is the rule that an injury to real estate is local and not transitory, as the cause of action could not have originated in any other place. Patterson v. Wilson, 6 Gill & J. 499; Ireton v. Mayor and City Council of Baltimore, 61 Md. 432, 434; Crook v. Pitcher, 61 Md. 510; Gunther v Dranbauer, 86 Md. 1, 38 A. 33; Guest v. Commissioners of Church Hill, 90 Md. 689, 696, 45 A. 882, 884; Gusdorff v. Duncan, 94 Md. 160, 50 A. 574; Mayor and City Council of Baltimore v. Meredith's Ford and Jarrettsille Turnpike Company, 104 Md. 351, 65 A. 35; Phillips v. Mayor and City Council of Baltimore, 110 Md. 431, 433, 72 A. 902, 904, 25 L.R.A., N.S., 711.

The fact that the legislature deemed it necessary to enact Article 75, § 160, 1951 Code (enacted in its present form by Acts of 1916, Chapter 617) to give jurisdiction under certain circumstances to a court sitting in a county (or Baltimore City) other than where the damaged real property is located strongly suggests recognition and continuing approval of the general rule that damages to real estate can be redressed only where the land lies.

Poe thus outlines the laying of venue in local actions in Maryland: 'In the case of trespass to real property, where the party committing it shall remove from the county where the property lies, or can not be found in such county, suit may be brought against him in any county where he may be found [Art. 75, § 160, 1951 Code]; but in all other cases the test of the jurisdiction is the situs of the property; and the venue must be averred and averred truly. If the declaration fails to allege the jurisdictional fact of the locality of the land, the defect may be availed of on demurrer.' 1 Poe, Pleading and Practice at Law, Sec. 728.

The proper mode of taking advantage of a defect in the averment that the real estate is located within the jurisdiction of the court in which the suit is brought would seem to be, in Maryland, by appropriate action in the trial court. Otherwise, the defect will be cured after verdict. On this very point, Crook v. Pitcher, supra, stated, in holding that the trial court had improperly overruled defendant's demurrer: 'Where the action is local, and the suit is brought in another place, the proper mode of taking advantage of the defect is by demurrer, and unless the defendant demurs, the defect will be cured by the Statute of Jeofails, 16 & 17 Car. II.' See also 2 Alexander's British Statutes (Coe's Ed.) 659 fn.

The rationale of the language quoted is that the distinction between local and transitory actions does not touch the jurisdiction of a court but only determines the particular manner in which the jurisdiction should be exercised. British South Africa Company v. Companhia de Mocambique, (1893) A.C. 602, 619. While there is a minority view to the contrary, the rule in most jurisdictions is as above stated. 22 Encyclopaedia of Pleading and Practice 815, and cases there collected.

Our holding is that the Maryland rule is correctly stated in Crook v. Pitcher, supra, and that the decree cured any defects of venue. See Art. 5, § 41, 1951 Code. We expressly avoid any intimation of our views had appellants made a timely objection to the authority of the trial court to adjudicate the issue of damages.

II

The Chancellor's decree awarded the appellees the total amount of $4,397.50. The Chancellor broke down his award into three distinct elements of damage:

(1) The cost of restoration, $2,760;

(2) the loss of use of the property, $637.50, which figure was arrived at by multiplying the minimum rental value of the property in its undamaged condition ($75 per month) by the 8 1/2 month period from July, 1952, when the appellees moved out, to the date of the last hearing, March 16, 1953; and

(3) punitive or exemplary damages in the amount of $1,000 in addition to the compensatory damages.

The appellants claim error in the assessment of each of these elements of damage.

With respect to the award of compensatory damages, appellants urge that a court of equity may not assess a greater measure of compensatory damages than the difference between the 'before' and 'after' value of the property when the cost of repairs to real property is greater than that difference; that in the case at bar the only testimony before the Chancellor indicated that the cost of restoration exceeded the diminution in value; and that, in any event, no award based on a loss of rent should have been allowed.

The Restatement of Torts, Sec. 929, gives as the measure of damages for harm to land from past invasions:

'Where a person is entitled to a judgment for harm to land resulting from a past invasion and not amounting to a total destruction in value, the damages include compensation for

'(a) at the plaintiff's election

'i. the difference between the value of the land before the harm and the value after the harm or the cost of restoration which has been or may be reasonably incurred, or

'ii. if a separable portion of the land has been damaged, the loss in its value, and

'(b) the loss of use of the land and

'(c) discomfort and annoyance, in an action brought by the occupant.'

Comment (b) further explains:

'* * * If, however, the cost of replacing the land in its original condition is disproportionate to the diminution in the value of the land caused by the trespass, unless there is a reason personal to the owner for restoring the original condition, damages are measured only by the difference between the value of the land before and after the harm. This would be true, for example, if in trying the effect of explosives, a person were to create large pits upon the comparatively worthless land of another.

'On the other hand, where a building such as a homestead is used for a purpose personal to the owner, the damages ordinarily include an amount for repairs, even though this might be greater than the entire value of the building. So, where a garden has been maintained in a city in connection with a dwelling house,...