Whitman v. Forney

19 Citing cases

  1. Baer v. Bd. of Co. Comm'rs

    257 A.2d 201 (Md. 1969)   Cited 9 times
    In Baer et ux. v. Board of County Commissioners, 255 Md. 163, 257 A.2d 201 (1969), the Court of Appeals had before it similar evidence of an artificial concentration of surface water and its discharge upon the property of a lower landowner caused by the installation of drainage pipes by the Board of County Commissioners of Washington County.

    The later Maryland cases have consistently applied the civil law rule. Baltimore Sparrows Point R.R. Co. v. Hackett, 87 Md. 224, 39 A. 510 (1898); City Dairy Co. v. Scott, 129 Md. 548, 100 A. 295 (1916); Neubauer v. Overlea Realty Co., 142 Md. 87, 120 A. 69 (1923); Eisenstein v. Annapolis, 177 Md. 222, 9 A.2d 224 (1939); Whitman v. Forney, 181 Md. 652, 31 A.2d 630 (1943); Biberman v. Funkhouser, 190 Md. 424, 58 A.2d 668 (1948); Bishop v. Richard, 193 Md. 6, 65 A.2d 334 (1949); Hancock v. Stull, 206 Md. 117, 110 A.2d 522 (1955); Baltimore County v. Hunter, 207 Md. 171, 113 A.2d 910 (1955); Battisto v. Perkins, 210 Md. 542, 124 A.2d 288 (1956); Kennedy-Chamberlin Dev. Co. v. Snure, 212 Md. 369, 129 A.2d 142 (1957); Sainato v. Potter, 222 Md. 263, 159 A.2d 632 (1960); Kidwell v. Bay Shore Dev. Corp., 232 Md. 577, 194 A.2d 809 (1963). See also Note, Drainage of Surface Waters Under the Civil Law Rule as Applied in Maryland, 11 Md.L.Rev. 58 (1950).

  2. Baltimore County v. Hunter

    113 A.2d 910 (Md. 1955)   Cited 10 times

    The general rule which is well established in this State was recently restated by this Court in an opinion by Judge Hammond in Hancock v. Stull, 206 Md. 117, 119, 110 A.2d 522, as follows: "The rule is that the owners of land are entitled to have surface waters flow naturally over the land of the lower landowner and the lower owner cannot obstruct the running of water from the higher land onto his own. Whitman v. Forney, 181 Md. 652. Pertinent qualifications are that the upper owner has no right to discharge water into an artificial channel, or in a different manner than the usual and ordinary natural course of drainage, or put upon the lower landowner water which would not have flowed there if the natural drainage conditions had not been disturbed. If water is unlawfully forced on the lower owner, he is entitled to protect his property from the unwarranted flow. Biberman v. Funkhouser, 190 Md. 424, 429."

  3. Hancock v. Stull

    86 A.2d 734 (Md. 1952)   Cited 19 times
    In Hancock v. Stull, 199 Md. 434, 437, we held that an order which in terms declared that the decree should not be enrolled had the effect of suspending its operation.

    It is unnecessary to quote or state the controlling legal principles as stated in our recent decisions. Bishop v. Richard, 193 Md. 6, 65 A.2d 334; Biberman v. Funkhouser, 190 Md. 424, 58 A.2d 668; Whitman v. Forney, 181 Md. 652, 31 A.2d 630. Relief was denied because the court found that plaintiffs also were at two places diverting the natural flow of water from south to north on their property to flow from east to west across defendants' property. The points on which the plaintiffs were found at fault and were denied all relief are thus stated in Judge Prescott's opinion, "[1] In constructing plaintiffs' house, it was actually built into the ground deeper than desirable.

  4. Bishop v. Richard

    65 A.2d 334 (Md. 1949)   Cited 14 times

    In the case of Biberman v. Funkhouser, 190 Md. 424, 58 A.2d 668, decided by this Court April 23, 1948, the facts showed that as a result of grading of the upper lands the natural flow of the water across the servient lands had been slightly increased. It was noted that Maryland had adopted the rule of the civil law, that the owner of land is entitled to have surface water flow naturally over the land of the lower (servient) land owner and that the lower owner cannot prevent the escape of water from the higher land onto his land. This principle was also announced in the recent case of Whitman v. Forney, 181 Md. 652, 31 A.2d 630, decided April 28, 1943, where the owners of lower lands had blocked off a ditch carrying surface water from the State Road across their land and where this Court held that the owners of the lower land should permit the State Roads Commission to go on their property for the purpose of repairing and keeping in repair the drainage pipe and ditch. In both the cases of Whitman v. Forney, supra, and Biberman v. Funkhouser, supra, the following quotation was made from the case of Philadelphia, Wilmington Baltimore Railroad Co. v. Davis, 68 Md. 281, 11 A. 822, 6 Am. St. Rep. 440, where the Court said, 68 Md. at page 289, 11 A. at page 824, 6 Am. St. Rep. 440, which is appropriate here: "The prevailing doctrine in this country seems to be that the owner of the upper land has a right to the uninterrupted flowage of the water caused by falling rain and melting snow, and that the proprietor of the lower land, to which the water naturally descends, has no right to make embankments whereby the cu

  5. Biberman v. Funkhouser

    58 A.2d 668 (Md. 1948)   Cited 15 times
    In Biberman v. Funkhouser, 190 Md. 424, 430, 58 A.2d 668 (1948) the flooded plaintiff was required to build a drainage ditch on his side of the property line, but only because the cost of the drain was minimal and it would have been necessary to uproot a hedge on the defendants' side of the line.

    In that case, where this Court discussed decisions in other states, it was said, at page 289 of 68 Md., at page 824 of 11 A.: "The prevailing doctrine in this country seems to be that the owner of the upper land has a right to the uninterrupted flowage of the water caused by falling rain and melting snow, and that the proprietor of the lower land, to which the water naturally descends, has no right to make embankments whereby the current may be arrested and accumulated on the property of his neighbor. This is the rule of the civil law, apparently founded on the principles of justice, and said to be `received with constantly increasing favor in the United States.'" Tiffany on Real Property, 3rd Ed., Vol. 3, Sec. 743; Baltimore S.P.R. Co. v. Hackett, 87 Md. 224, 39 A. 510; City Dairy Co. v. Scott, 129 Md. 548, 100 A. 295; Whitman v. Forney, 181 Md. 652, 31 A.2d 630. This rule of the civil law is subject to the qualification that the upper owner has no right to increase materially the quantity or volume of water discharged on the lower land owner.

  6. Mark Downs, Inc. v. McCormick Prop

    51 Md. App. 171 (Md. Ct. Spec. App. 1982)   Cited 7 times   2 Legal Analyses
    Stating that "[w]here God and man collaborate in causing flood damage, man must pay at least for his share of the blame"

    One, denoted the "common law" rule, holds that "the ordinary right of an owner of land to make any use whatever of his land either by erections thereon or changes in the surface, is regarded as independent of the effect which such erections or changes may have in causing water which naturally flows off on his land to collect or flow on other land." Whitman v. Forney, 181 Md. 652, 656-57 (1943), quoting from 3 Tiffany on Real Property, § 743 (3d ed. 1939). The other rule, known as the "civil law" rule, holds that "land on which surface water naturally flows from another tenement is regarded as subject to a servitude of receiving such flow, and consequently the owner has no right, by any erection or improvement to prevent the escape thereon of water from the higher land."

  7. Heins Implement v. Hwy. Transp. Com'n

    859 S.W.2d 681 (Mo. 1993)   Cited 88 times
    Holding that owner may bring inverse condemnation action when private property is damaged by an unreasonable diversion of surface waters by public works

    , 1076 (1980); City of Franklin v. Durgee, 71 N.H. 186, 51 A. 911, 913 (1901); Armstrong v. Francis Corp., 20 N.J. 320, 120 A.2d 4, 10 (1956); Pendergrast v. Aiken, 293 N.C. 201, 236 S.E.2d 787, 796 (1977); Jones v. Boeing Co., 153 N.W.2d 897, 904 (N.D. 1967); McGlashan v. Spade Rockledge Terrace Condo Dev. Corp., 62 Ohio St.2d 55, 402 N.E.2d 1196, 1200 (1980); Butler v. Bruno, 115 R.I. 264, 341 A.2d 735, 740 (1975); Sanford v. University of Utah, 26 Utah 2d 285, 488 P.2d 741, 744 (1971); Morris Associates, Inc., v. Priddy, 181 W. Va. 588, 383 S.E.2d 770, 774 (1989); State v. Deetz, 66 Wis.2d 1, 224 N.W.2d 407, 416 (Wis. 1974). Courts that have imposed a reasonableness requirement upon the civil law rule include: Keys v. Romley, 64 Cal.2d 396, 50 Cal.Rptr. 273, 412 P.2d 529, 536-37 (1966); Templeton v. Huss, 57 Ill.2d 134, 311 N.E.2d 141, 146 (1974); Burgess v. Salmon River Canal Co., 119 Idaho 299, 306, 805 P.2d 1223, 1230 (1991); O'Tool v. Hathaway, 461 N.W.2d 161, 163 (Iowa 1990); Whitman v. Forney, 181 Md. 652, 31 A.2d 630, 633 (1943). Those that have done so for the common enemy doctrine include: Pirtle v. Opco, Inc., 269 Ark. 862, 601 S.W.2d 265, 267 (1980); Mattoon v. City of Norman, 617 P.2d 1347, 1349 (Okla.

  8. McGlashan v. Spade Rockledge Corp.

    62 Ohio St. 2d 55 (Ohio 1980)   Cited 63 times
    In McGlashan, the Supreme Court of Ohio looked to chapter 40 of the Restatement of Torts 2d to determine the reasonableness of an interference with surface water.

    However, since then numerous other courts have heeded the article's advice to replace the arbitrary civil-law and common-enemy doctrines, with their attendant modifications and exceptions, with "a flexible rule like the rule of reasonableness, which merely lays down a general objective and a list of factors to be considered in determining whether or not that objective has been attained in any given case." The following jurisdictions have espoused some form of the reasonable-use rule: Weinberg v. Northern Alaska Development Corp. (Alaska 1963), 384 P.2d 450; Keys v. Romley (1966), 64 Cal.2d 396, 412 P.2d 529; Rodrigues v. State (1970), 52 Haw. 156 Hawaii, 472 P.2d 509; Klutey v. Commonwealth Dept. of Highways (Ky. 1968), 428 S.W.2d 766; Whitman v. Forney (1943), 181 Md. 652, 31 A.2d 630; Pendergrast v. Aiken (1977), 293 N.C. 201, 236 S.E.2d 787; Jones v. Boeing Co. (N.D. 1967), 153 N.W.2d 897; Armstrong v. Francis Corp. (1956), 20 N.J. 320, 120 A.2d 4; Houston v. Renault, Inc. (Tex. 1968), 431 S.W.2d 322; Sanford v. University of Utah (1971), 26 Utah 2d 285, 488 P.2d 741; and State v. Deetz (1974), 66 Wis.2d 1, 224 N.W.2d 407. Kinyon McClure, supra, at page 935.

  9. Pendergrast v. Aiken

    293 N.C. 201 (N.C. 1977)   Cited 53 times
    Adopting Tentative Draft 18 of the Second Restatement

    In cases where such hardship would necessarily ensue to one or the other of the owners, courts have sometimes adopted what may be called a `reasonableness of use' rule. . . . The case before us presents a state of facts in which the rule of reasonableness of use is applicable." Whitman v. Forney, 181 Md. 652, 31 A.2d 630 (1943). Perhaps the most comprehensive modification of the civil law rule was undertaken in the California case of Keys v. Romley, 64 Cal.2d 396, 412 P.2d 529, 50 Cal.Rptr. 273 (1966).

  10. Kidwell v. Bay Shore Corp.

    194 A.2d 809 (Md. 1963)   Cited 3 times

    However, this Court has recognized that a strict and rigid adherence to the civil-law rule, in some cases, works undue hardship upon one or more of the parties; and has applied the reasonable-use doctrine. Whitman v. Forney, 181 Md. 652, 31 A.2d 630; Hancock v. Stull; Baltimore County v. Hunter; Battisto v. Perkins; Sainato v. Potter, all supra. The application of this doctrine does not change the adopted rule of law, but provides mitigation from harsh results which may be reached by a strict application thereof. It depends upon the facts of each particular case, is peculiarly appropriate for an equity court to follow, and, in cases where undue hardship will ensue to one or the other of property owners by a rigid application of the civil-law rule, it has the advantage of flexibility, whereby the rights of the respective owners may be equitably determined by an assessment of all the relevant factors relating to the disposition of surface waters. We note that there seems to be a trend by the Courts toward a more frequent application of the rule.