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Show MARYLAND 381 ers may improve their lands, although they must protect the lower land from sliding silt, mud, and other debris.53 Eegrading of the upper tract is allowed if the owner acts reasonably.54 In short, the upper landowner acts pretty much at his peril when improvements are made. Whether the courts will find his acts to be reasonable is often difficult to predict in any particular case. 4. Ground Water In section 1, supra, it was noted that ground water as well as sur- face water is subject to the permit system. In addition, several statutes relate to permits to drill wells, although well-driller licenses have been abolished. Permits may not be refused for domestic use on a farm. As with diffused surface water, the Maryland court has expressed a decided preferance for the reasonable use rule as the basis for a landowner's right to deal with subterranean percolating water.55 Al- though a distinction is still drawn between underground streams58 and percolating water (which flows in no defined channel), there is a presumption that the ground water is of the latter type. The whole subject of ground water was reviewed carefully in a re- cent decision, Finley v. Teeter Stone, Inc.57 where the defendant's stone quarry consisted of a pit coA^ering almost 100 acres and extend- ing to a depth of as much as 80 feet. In order to maintain efficient mining operations, it was necessary for the defendant continually to drain water which accumulated at the bottom of the pit. Much of this water was percolating water draining from plaintiff's adjacent land. As the flow of ground water from plaintiff's land accelerated, the water dislodged clay and other materials which had formerly offered support for plaintiff's surface soil in its natural condition. The result was the formation of an enormous void or vault beneath the plaintiff's land. As late winter and spring rains penetrated the vault, the mantle of soil above the rock stratum subsided, causing sink holes on the surface which seriously diminished the value of the plaintiff's land. The parties stipulated that only percolating water flowed into defendant's quarry; that the plaintiff's land itself did not fall into defendant's pit, and that defendant was not negligent in the conduct of its mining operations. The court of appeals held that there was no legal basis for award- ing damages to the plaintiff, after reviewing both the English rule of absolute ownership and the American rule of reasonable use view, and concluding that defendant's diversion or destruction of the flow of percolating waters was a reasonable use of his land in connection with legitimate and ordinary mining operations. The court noted that other courts have held that such diversions may be unreasonable waste, or if the defendant's conduct is malicious or negligent. The present case fell within none of these exceptions, since the water was 63 Battisto v. Perkins, note 2, page 15; Grant v. Katson, 261 Md. 112, 274 A. 2d 88 (1971) ; Sainato v. Potter, note 3, p. 15. ^Bioerman v. Funkhouser, note 1 supra. See also, Parklawn, Inc. v. Giant Food, Inc., 262 Md. 148, 277 A. 2d 80 (1971) where the upper owner was found to be negligent In Calling to sod and seed his land. re See Western Maryland R.R. v. Martin, 110 Md. 554, 566, 73 Atl. 267 (1909). M See Washington County Water Go. v. Garver, 91 Md. 398, 46 Atl. 979 (1900). "251 Md. 428, 248 A. 2d 106 (1968). |
