The opinion of the court was delivered by: KRAFT
In August of 1961, the plaintiff was, and still is the owner of a tract of land on Deal Island, Somerset County, Maryland. On or about the above date, Norfolk Dredging Company (Norfolk) was conducting dredging operations in the vicinity of Deal Island pursuant to a contract with the Corps of Engineers, United States Army.
As a necessary and concomitant result of these dredging operations, Norfolk entered upon plaintiff's land and there dug a trench, constructed a dike and deposited the by-product of its dredging operation, consisting primarily of mud and silt, to the depth of eight feet. These operations were performed by Norfolk "for the benefit of and on behalf of the United States of America",
as provided in the contract between Norfolk and the United States. The site of this dumping operation was one of four specific areas designated on a chart supplied by the United States and referred to in paragraph "SC-4, Contract Drawings, Maps and Specifications."
The plaintiff gave no permission to the United States or Norfolk to enter upon or alter his premises or to deposit the "spoil" thereon. The United States mistakenly believed that it had obtained permission so to do by an earlier, unrecorded easement it had secured from Ralph R. Brown, a former owner of the premises.
The plaintiff has filed an action under the Federal Tort Claims Act, 28 U.S.C.A. § 1346, against the United States and Norfolk and, by reason of diversity of citizenship, against Norfolk alone. His complaint, in two counts, in substance alleges an ordinary common law action of trespass to land (quare clausum fregit) against both defendants.
Norfolk filed a cross-claim against the United States which has been dismissed, pursuant to a stipulation
whereby the United States has assumed the complete defense of this action and agreed to indemnify Norfolk in the event of the entry of an adverse judgment against the latter.
Before us now, for disposition, is the plaintiff's motion for summary judgment on the issue of the defendants' liability.
We conclude that the Government's contentions are untenable.
The record in this case clearly establishes that a continuing trespass was committed by both defendants. Such a tort is actionable under the Tort Claims Act. Lemaire v. United States, 76 F. Supp. 498 (D.Mass.1948).
The general rule of law, prevailing in all the American Courts, is that an employer (United States) of an independent contractor (Norfolk) is liable for a trespass committed by the contractor as a natural consequence of his performing the contract.
21 A.L.R. 1229-1266; 27 Am.Jur., Independent Contractors §§ 40, 41.
"Nor does the 'independent contractor' doctrine apply where the work that the contractor is to do of itself amounts to a nuisance or necessarily operates to injure or destroy the property of the plaintiff." Weinman v. DePalma, 232 U.S. 571, 576, 34 S. Ct. 370, 372, 58 L. Ed. 733 (1914).
The liability of the employer arises not from the manner in which the work is done, but from the plain fact that "* * * the thing contracted to be done causes the mischief." Bonaparte v. Wiseman, 89 Md. 12, 42 A. 918, 919, 44 L.R.A. 482 (Md.1899).
"Whatever is done by the contractor in pursuance of the plans and specifications which form a part of the written contract is manifestly to be considered a result of the contract for which the employer is responsible." 27 Am.Jur., Independent Contractors § 41.
Neither Norfolk nor the United States can escape liability because their trespass was done under a mistaken ...