Mayor of Baltimore v. Merryman

86 Md. 584 | Md. | 1898

Boyd, J.,

delivered the opinion of the Court.

The appellee is the owner of a farm in Baltimore County, bounding on a running stream of water called the “Great Gunpowder Falls.” The appellant completed in 1881 the erection of a dam across this stream, about four miles below the appellee’s farm. The dam is a stone structure twenty feet high above the natural bed of the stream, and the water is backed up by it about eight hundred or a thousand feet north of Meredith’s Ford Bridge, which crosses the stream at the lower end of this farm. The plaintiff claims that the erection of the dam obstructed the flow of water along her farm, forced it back upon it and thereby caused large deposits of sand, mud, dirt and debris to collect and gather in the bed of the stream, which the defendant negligently permitted to remain there, whereby the stream became obstructed, filled and choked up to such an extent as to cause the water to overflow her farm and destroy the fencing, the crops and vegetables growing on it, and large deposits of sand, mud, dirt and filth to remain on it. It is also alleged that the defendant became the owner and possessor of the bed of the stream, the bank thereof and the land contiguous thereto on either side for several miles below this farm. The dam and improvements were made in connection with the water supply of the defendant, the water being drawn from the lake into a conduit and eventually taken into the city. The plaintiff offered evidence tending to prove the above facts and also that the water in the stream along her land is now a foot, or more, higher than it was before the dam was built. At the conclusion of the plaintiff’s testimony, the defendant offered two prayers. The first asked the Court to instruct the jury that under the pleadings there was no legally sufficient evidence to entitle the plaintiff to recover, and the second that under the pleadings there was no legally sufficient evidence to entitle the plaintiff to recover more than nominal damages. Both were rejected, and will be considered together.

That these prayers were properly rejected, we think can admit of no reasonable doubt. It is true that the defendant was acting under powers granted it by the Legislature when the dam and lake were made, but if in building them it caused the water to flow back and remain on the plaintiff’s property, or any part thereof, we can understand no reason why it could not be made to respond in damages for the injury sustained thereby. It is proven that the erection of the dam raised the water a foot, or more, higher than it formerly was on the bank of the stream along plaintiff's property. If that be true, and if this bank belonged to the plaintiff, as we understand to be conceded, although the record furnishes but little evidence on that subject, then there was undoubtedly a “taking” of some of her property, for which she was entitled to compensation. The defendant had no more authority to take a part of the bank of the stream, if it was the plaintiff’s property, by covering it with water and keeping it so covered for its own purposes, than it would have to go beyond the bank, excavate the plaintiff’s land, flood it with water and use it as the testimony shows other lands were used lower dowm the stream in making the lake. If it had been deemed necessary or proper to erect a dam or other structure on this property, in connection with this improvement, no one would suppose that it could be done without compensating the owner, and it seems to us to be equally clear that the plaintiff’s land, or a part of it, cannot be taken for storage of water, for after all that was what was done so far as the bank is concerned, without just compensation.

The allegations in the declaration are that the dam, etc., of the defendant, caused large deposits of sand, mud, dirt, etc., to collect and gather in the bed of the stream, and that the defendant negligently and carelessly suffered and permitted such deposits to remain in the bed of the stream, where it flowed through and over the lands of the defendant for and during three years and until the institution of this suit, so that the stream became and continued all that time obstructed, filled and choked up to such extent as to cause the waters thereof, which would otherwise have freely flowed off and down said stream, to be backed up and to overflow the farm, and the testimony tends to establish these allegations. Is it to be said that a municipal corporation can thus interfere with the rights of others and injure their property, without being liable in damages, merely because it, in constructing its works, is acting under legislative authority? The Legislature has no power to grant such rights to any corporation, public or private. In the familiar case of Pumpelly v. Canal Company, 13 Wall. 166, the Supreme Court of the United States, after referring to the doctrine that for a consequential injury to the property of the individual, arising from the prosecution of improvements of roads, streets, rivers and other highways, for the public good, there is no redress, said “ it remains true that when real estate is actually invaded by superinduced additions of water, earth, sand or other material, or by having any artificial structure placed on it, so as to effectually destroy or impair its usefulness, it is a taking, within the meaning of the Constitution, and that this proposition is not in conflict with the weight of judicial authority in this country, and certainly not with sound principle.” So much of the plaintiff’s property, therefore, as is covered by the water, would seem to be clearly taken within the meaning of the constitutional prohibition.

But, as we have seen, the declaration alleges that the defendant negligently permitted these large deposits of sand, etc., to remain in the stream and thereby cause the overflows which damaged the plaintiffs’s property. The testimony shows that since the erection of the dam, the bed of the stream has changed materially—formerly it had “ a hard, rocky bottom, with good current, strong in some places and without deposits of sand and mud. Now it is filled in many places some three or four feet above the surface of the water of the lake. Some of the deposits are acres in extent, and in places you can walk across; this filling up extends all along the stream from near the breast of the dam up to Meredith’s Bridge, and in places above the bridge along the Merryman property.” The plaintiff’s witnesses also testified that “ overflows of the land up there are more frequent, so that now every little rain or high water raises the stream, so that it overflows its banks in many places. * * A great deal of the bottom land is valueless now ; there are forty or fifty acres of the plaintiff’s land injured in this way.” The testimony also shows that as the current comes down the stream and strikes the still water and the obstructions in the stream, it is forced on the plaintiff’s land and leaves a sand deposit. There is also evidence tending to show that the materials settling in the lake could be gotten out by dredging or flushing it. So, if it be conceded, which we by no means do, that the defendannt would not be liable for consequential damages resulting from its mere act of building the dam and lake and thus obstructing the current, there is evidence of negligence in the maintenance of the improvements. Municipalities are liable either for negligence in the construction of sewers, drains, culverts, etc., or for the negligent failure to keep them in repair, although they are only intended to carry off surface water within the corporate limits, and why should they not be responsible for negligence in not keeping what was formerly a running stream of water, thus used by them, free from obstructions that force the water on the abutting property? It will not do to argue that the deposits of sand, etc., have not injured the plaintiff, for there is evidence to the contrary, and it was stated by some of the witnesses that it had only been since the lake has been so filled up by the deposits that the plaintiff has suffered from the overflow beyond what she did prior to the erection of the dam. That evidence was, of course, for the jury.

We do not deem it necessary to discuss the question whether the mere building of the dam and lake, and thus interfering with the natural flow of the water, would be sufficient to entitle the plaintiff to recover without some negligence being proven, as the declaration does not rely upon that, but charges negligence in both counts, and relies on the fact that the stream is choked up, as the foundation for recovery. As there was testimony to support the allegations in the declaration, and there was evidence of substantial and not merely nominal damages before the jury, the prayers offered at the conclusion of the plaintiff's testimony were both properly rejected.

We can see no valid objection to the plaintiff’s prayer. The criticism that it assumes the right of the plaintiff to recover, we think is not justified, as it expressly leaves that to the jury. The fifth and sixth prayers of the defendant were sufficiently covered by those granted not to do any injury to the defendant by rejecting them. The seventh is erroneous, because the plaintiff was notlimitedin her recovery to such damages as she suffered within three years prior to February ioth, 1896, the date of the bringing of this suit. It is true the declaration alleges that the defendant negligently permitted the condition of things therein stated to continue “for and during three years, and up to the time of the institution of this suit,” but the plaintiff was entitled to recover for any damages she suffered even after the suit, if they were the natural and necessary results of the acts done prior thereto. Frostburg v. Duffy, 70 Md. 55. The eighth undertook to confine the plaintiff’s recovery to actual loss of rents or profits directly caused by the overflow. There was testimony tending to show permanent injury.to the land itself, loss of fences, etc., and therefore that prayer was not proper. What we have already said is sufficient to indicate that we do not think the ninth was correct.

There were some exceptions to the rulings of the Court in reference to the testimony, but we do not understand that any of them are pressed on this appeal. The most of the bills of exception do not show what the answers to the questions were, if they were answered, and hence we cannot tell whether the defendant has been injured by them. Finding no error in the rulings of the Court below, the judgment will be affirmed.

(Decided January 4th, 1898).

Judgment affirmed, the appellant to pay costs.