delivered the opinion of the Court.
This action was brought to recover damages alleged to have been suffered, by reason of the backing and overflow of water, mud, &c. upon the property of the plaintiffs, caused, as it is alleged, by a badly constructed and insufficient underground sewer, in the town of Frostburg. It is alleged that, in the grading of two of the streets of the town, the surface water was diverted from its natural
By the charter of the town, full authority is conferred upon the Mayor and Councilmen to open, grade and pave streets, and to construct such gutters and sewers as, in their judgment, the public convenience may require, and to repair the same whenever needed. They are also empowered to remove all nuisances and obstructions from the streets, and they are clothed with power to pass all such ordinances as may he deemed beneficial to the town, and necessary for the safety and protection of person and property of the inhabitants thereof. Acts 1870, ch. 77 ; 1878, ch. 255.
The evidence shows that the town of Frostburg is built on the slope of a mountain, and the grades of its streets are, in many places, and in different directions, quite steep. Charles street has a heavy down grade to the point where it joins or intersects Bowery street, and the latter has a considerable ascent in both directions, east and west, from the point where such streets join at right angles. Artificial gutters have been made on the north side of Bowery street, and on the east side of Charles street, whereby the- surface water, which flows on both streets in large
Upon the whole evidence, both parties applied to the Court for instructions to the jury. But of the prayers offered, the one single prayer by the plaintiffs, and all those by the defendant, except the first and fourth, were rejected. It was therefore upon the first and fourth prayers of the defendant, given as instructions, that the case was placed before the jury. The plaintiffs excepted
Before proceeding to notice particularly the prayers under review, we deem it proper to state the general doctrine of the law upon the subject, as we find it laid down by the most approved authorities.
How far the common law, independently of the special provisions of the statute incorporating the defendant, would furnish a remedy against a municipality for an injury such as that complained of here, is a question not necessarily involved in this case. For as we have seen, the statute, with a view to the improvement and benefit of the town, confers large powers upon the Mayor and Councilmen, with respect to streets, drains, sewers, &c., and also power to remove and prevent nuisances. It is out of these powers, and the manner of their exercise, and the duty resulting therefrom, that the liability here insisted upon arises to the plaintiffs, if it can he maintained at all, in respect to the facts of the case, as-we have stated them.
In Cooley on Constitutional Limitations, page 248, it is laid down as the result of the decisions upon the subject, that “ The grant by the State to the municipality of a portion of its sovereign powers, and their acceptance for these beneficial purposes, is regarded as raising an implied promise, on the part of the corporation, to perform the corporate duties ; and this implied contract, made with the sovereign power, enures to the benefit of every individual interested in its performance. In this respect these corporations are looked upon as occupying the same position as private corporations, which, having accepted a valuable franchise, on condition of the performance of certain public duties, are held to contract by the acceptance for the performance of these duties. In the case of public corpo
But notwithstanding this duty and liability of the municipality, in respect to powers delegated, there is a class of powers defined as discretionary or quasi judicial, which the corporate authorities cannot be compelled to execute. As, for instance, the opening, widening or extension of streets, the adoption of a particular grade, or the adoption of any particular plan for improvement, and the like, unless the terms of the statute are imperative. But any particular plan that may be adopted must be a reasonable one, and the manner of its execution thence becomes, with respect to the right of the citizen, a mere ministerial duty; and for any negligence or unskilfulness in the execution or construction of the work, whereby injury is inflicted upon private
Now, with these general principles in view, we will turn to the prayers which form the subject of the first exception by the plaintiffs. And, with respect to the one prayer offered by the plaintiffs, we think the Court below was right in rejecting it. By that prayer the Court was asked to instruct the jury, that if they should find that the defendant built the culvert described by the witnesses, and that the same was intended to receive and carry off the surface water flowing through the gutters, along Bowery and Charles streets, in times of rain ; and further find that such sewer or culvert was constructed in such careless, unskilful and improper manner, as, instead of carrying off such water, to cause the same to accumulate in large quantities at the upper end thereof, and from thence to flow hack upon the property of the plaintiffs, and injure and damage the same, then the plaintiffs were entitled to recover. This prayer would seem, as a general proposition, to he quite correct, as far as it goes; but in view of the evidence in the case, and to avoid misleading the jury, it ought to have gone further, and made reference to the evidence on the part of the defendant, whereby it was sought to show that, by cutting down the cellar floor of the plaintiffs’ house, the water was in fact let in from the gutter on Bowery street, which did the injury complained of, and that such injury, therefore, was not caused by any fault of the defendant in the construction or repair of the sewer. Eor if it be true, that the injury suffered was in fact pro
But we think there was error in granting the prayers of the defendant. The first of these prayers, as construed by the Court, in the course of the argument of counsel to the jury, is based upon the theory that the plaintiffs could not recover, notwithstanding the jury might find from the evidence that the surface water was diverted from its natural flow, by the elevation and improvement of the streets, and by the artificial gutters and drains, whereby such surface water was collected in volume, and conducted to the mouth of the sewer opposite the adjoining property of the plaintiffs, whence it could not escape, except by flowing over the premises of the plaintiffs, “if the jury should find that the cause of the'back flow.of the water was the elevation of the street, and that said culvert was insufficient in size to carry off all of such water in times of heavy rain ; provided the construction of the culvert did not place or leave the said property in a worse condition than if no culvert had been made at all.” To this proposition we cannot assent. Reason,' as well as authority, would seem clearly to oppose it. We fully agree with Judge Dillon, in the principle stated by him in section 1042, (vol. 2,) of his work on Municipal Corporations. In that section, after referring to the general doctrine that the municipality is not bound to
The second prayer granted on the part of the defendant-is obnoxious to the same objection that applies to the first. The plaintiffs, and those under whom they claim, had,, clearly, the right to the use and enjoyment of their property,, in any reasonable way, and for any reasonable purpose, and to make any alteration or new adaptation therein, that they deemed proper, without thereby subjecting themselves to the loss of protection to their property from wrongful invasion, by inundation or otherwise. Hence it was error to instruct the jury upon certain enumerated facts, in respect to the lowering of the cellar floor, (as was done by granting this prayer,) “that the plaintiffs could not recover for any injury to said house caused by said inflow of surface water to such basement or cellar, notwithstanding the jury might find that the grade of said street,'and the insufficient size of said culvert caused the inflow of said surface water to said basement in time of heavy rain.” If the injury complained of was sustained by reason of the backing of the water from the mouth of the culvert, where it had been brought in large quantities by artificial drains, and
In thus disposing of the two prayers granted for the defendant, we also dispose of the Court’s construction of the first prayer, as stated in the third exception. And as to the question raised and stated in the fourth exception, we think the Court was quite right in ruling as it did. There was no question before the jury as to the want of care or skill in the construction of the gutter or passageway for the water along Charles street. Defects and unskilfulness in the construction of that gutter, or negligent failure to keep it in repair, are not alleged as substantive and independent causes of injury; nor was there any proof to show that injury was suffered from that cause.
The second and fifth exceptions present questions of practice. It appears, by the second exception, that, after the Court had ruled upon the prayers for instruction, and granted such as were approved, the counsel for the plaintiffs, in argument to the jury, proceeded to read the declaration. To this the counsel on the other side objected; and upon inquiry by the Court as to the purpose of reading the declaration to the jury, the counsel for the plaintiffs said, “that his purpose was to call the attention of the jury to the testimony in the case, and to apply such testimony to the allegations of the declaration, and to argue that said allegations, and each of them, were sustained by the evidence in the case, and therefore plaintiffs were entitled to recover, because defendant had not demurred.” The Court would not permit the declaration to be read, and the plaintiffs excepted.
This Court is clearly of opinion that the action of the Court below was entirely correct. Otherwise it would be
In the fifth exception it is stated, that at the conclusion of the argument, and when the jury were about to retire to consider of their verdict, the counsel for the plaintiffs asked that the jury be allowed to take with them to their room the declaration in. the case. This request, upon objection by' the defendant, was refused by the Court, and the plaintiffs excepted. This refusal by the Court, we think, forms no ground of exception by the plaintiffs. It is true, it is said by the late Mr. Evans, in his work on Maryland Practice, page 400, that when the jury withdraw from the bar, “they have the right to take with them the pleadings in the cause, and the written directions of the Court;” and this passage of the work was referred to in the opinion of this Court, with apparent approval, though not at all necessary to the decision, in the case of Ingalls vs. Crouch, 35 Md., 296. In the case just mentioned, it was not said or intimated that the practice was so established as to forbid the exercise of the discretion of the Court below over the subject, and that the refusal to allow the pleadings to be taken by the jury was a subject of exception and review. On .the contrary, there are many reasons for holding that the matter rests exclusively in the discretion of the Court below. . In any case where the Court may suppose that the jury might be misled by the statements and
It follows from what we have said in regard to the two prayers granted on the part of the defendant, that the judgment must be reversed, and a new trial awarded.
Judgment reversed, and new trial awarded.