Toy v. Atlantic Gulf & Pacific Co.

• Decision Date: 22 February 1939
• Docket Number: 7.
• Citation: 4 A.2d 757,176 Md. 197
• Parties: TOY et ux. v. ATLANTIC GULF & PACIFIC CO.
• Court: Maryland Court of Appeals

4 A.2d 757

176 Md. 197

TOY et ux. v. ATLANTIC GULF & PACIFIC CO.

No. 7.

Court of Appeals of Maryland

February 22, 1939

Appeal from Circuit Court, Queen Anne's County; J. Owen Knotts and Thos. J. Keating, Judges.

Action by Mallery Toy and Bessie Toy, his wife, against the Atlantic Gulf & Pacific Company, to recover damages sustained by plaintiffs when, because of alleged negligence of defendant large quantities of earth were deposited in water so that pond on plaintiffs' land and navigation of approach to plaintiffs' premises were destroyed. From a judgment on an instructed verdict for the defendant, the plaintiffs appeal.

Judgment affirmed.

Omar D Crothers, Jr., and W. Hamilton Whiteford, both of Baltimore (Henry A. Warburton, of Elkton, on the brief), for appellants.

Edward D. E. Rollins, of Elkton, and Thomas J. Keating, Jr., of Centreville (James T. Mullin, of Wilmington, Del., on the brief), for appellee.

Argued before BOND, C.J., and OFFUTT, PARKE, SLOAN MITCHELL, SHEHAN, JOHNSON, and DELAPLAINE, JJ.

PARKE Judge.

The effect of the pleadings in this case made it an action sounding in negligence whereby the defendant was chargeable with the deposit of great quantities of earth in navigable water so that a pond for carp on the land of the plaintiffs and the navigation of an approach to the plaintiffs' premises were averred to be destroyed so that the value of plaintiffs' land was greatly diminished. At the close of the testimony on the part of the plaintiffs, the defendant offered no evidence, but submitted a prayer to take the case from the jury on the ground of the legal insufficiency of the testimony to entitle the plaintiffs to recover. The court granted this prayer; and, pursuant to its instruction, the jury returned a verdict for the defendant. It is from the judgment on this verdict that the plaintiffs have appealed. The principal error assigned is the ruling on this prayer. The contention is that the court erred in declining to apply either the doctrine of res ipsa loquitur or the principle of liability without fault in support of the plaintiffs' testimony and right of action. In the view here taken of the case, it becomes unnecessary to discuss the relatively unimportant exceptions to rulings on the testimony.

The plaintiffs are the owners of a tract of land on the west side of Back Creek. The property was bought by them some years ago. A ravine led down to the shore of Back Creek, whose tidal water spread over the bottom of this wavine. For the purpose of providing carp for the market, a dam was made by building a breast across the ravine and scooping out to a greater depth the bottom so that the tide water of Back Creek would naturally fill the dam half of its depth, and the flow of water from springs at the head of the dam would raise the impounded water to the level of the breast. In this pond, the carp were kept until they had grown to be of saleable size, when they were hauled away over a roadway from the land to a public thoroughfare. The tide water of Back Creek was let in and out of the pond by a weir constructed in the breast of the dam; and from the point of this weir Back Creek was navigable at high or low tide in small power or row boats with a maximum draught of about 2 1/2 feet. The chief use of the water way to the plaintiffs was in the transportation by boat of carp to the premises, and as an outlet and inlet to the deeper waters of the River and Chesapeake Bay. The tides would frequently rise above the top of the breast and overflow the pond. The testimony disclosed that the land of the plaintiffs embraced four contiguous parcels, and three of these were separately acquired and held by the husband in severalty, and the fourth was likewise an independent purchase but it was conveyed to the husband and wife as tenants by the entireties, and is so held by them. The pond for carp is built upon the first parcel bought and the title for this land is in the husband in severalty. It follows that the alleged wrongs relate wholly to the husband's property in which the wife had her marital interests.

The injury inflicted is the result of public work of the federal government in connection with the navigable waters of the United States known as the Chesapeake and Delaware Canal, which is an inland inter-state sea level navigable waterway extending from a point on the Delaware River westward about fourteen miles to Chesapeake City, Maryland, on Back Creek and thence down Back Creek about five miles to Elk River, and thence down Elk River to the Chesapeake Bay. See Perrine v. Chesapeake & Delaware Canal Co., 9 How. 172, 13 L.Ed. 92. In order to maintain the required depth of the canal frequent and extensive dredging is necessary. The method used was to dredge the material from the canal way by hydraulic machines and to remove the material by its flow through a movable pipe line at whose outlet the material in a mixture of silt, earth and water, would be disposed of by deposit in a fluid state upon governmentally supplied or approved places. The effluent would spread out, and the water would drain away and escape through sluices and channels provided and the residue of mud would remain to form fast land. The federal government had provided along the shore of Back Creek and across from plaintiffs' land a large disposal area for this purpose. As a result of repeated dredging of the canal and successive deposits of material, the fast land had been raised high above the water level along the west shore of Back Creek, so that the federal government had constructed an embankment to confine the excavated material. The height of this embankment at the shore line was 35 feet above mean low tide. The surface of the fill over the area for the disposal of the dredged material was uneven, but opposite the plaintiffs' property it was over 7 or 8 feet below the top of the embankment when the defendant began its dredging operations on October 7, 1935. At that time there were two other dredging companies at work on the canal, but the formation of heavy ice so interfered with their operations that by the middle of December both had quit. The defendant, however, continued.

Before the defendant began to dredge, it made an inspection of the embankment which the Federal Government had built. The embankment was found to be in excellent condition and twice the structural strength that would be built for the fill to be made. The existing fill of fast earth had been made by former deposits of material which had been excavated from the canal under governmental direction and control and there was nothing to indicate that the embankment was insecure or that its construction was defective in design or material. At the toe of the embankment, a concrete highway had been constructed by the State Roads Commission of Maryland. It had been there for four or five years, and was in a good state of repair. The engineers of the Government in charge of the improvement directed the defendant to deposit the material in that section of the provided area which was opposite the land of the plaintiffs and near the embankment. Under the supervision of these engineers, the defendant re-enforced by manual labor the embankment by sand bagging and filling in with earth so that the width of the embankment was increased by from 25 to 50 feet to a distance of from 7 or 8 feet below the level of the top of the original embankment. After this reinforcement had been made two or three hundred feet in advance of the position of the dredge at work in the canal, the defendant was instructed to deposit the material in the area so prepared, and the work was carried on in the usual manner until near 7 o'clock on the evening of January 14, 1936.

Before this date the deposit of fixed earth against the existing embankment in this section of the area of disposal had been raised to a level from 4 to 5 feet below the top of the embankment. The outlet of the line of pipe was from 800 to 1000 feet away from the embankment, and its discharge emptied upon the ground where the effluent spread out and was allowed to stand confined so that the solid matter would gradually settle to become fast earth while the water, as it cleared, was drawn off from the top through spillways and flumes and thence flowed into a ditch at a point approximately 1200 feet from the section of the embankment where the accident occurred. The ditch was government property and in it the discharge of water flowed into Back Creek. The spillways and flumes were erected by the government, but, during the period of his contract, the defendant was charged with their maintenance. When the contractor began its undertaking it doubled the structural strength of the spillways and they were thus made capable of sustaining whatever strain might be imposed. With the adequate equipment all in order and so maintained, and the discharge of the dredged material and the flow of water both so controlled and directed as not to affect the embankment which moved out, the work of dredging proceeded without any testimony offered of negligence in construction or operation for which the defendant was responsible.

The contract was to dredge approximately 3,149,700 cubic yards of material in the Canal between Bethel and Chesapeake City which was over a mile, and the area provided by the Government for the deposit of this material between these points was estimated in the testimony to be from 6000 to 8000 feet in width. The work was carried on under governmental control and in accordance with definite specifications. The contract required the material to be transported and deposited at such places within the disposal areas which the United States had provided, or which the contractor could provide, and the...