70 Md. 56 | Md. | 1889
delivered the opinion of the Court.
The main' questions in this case are fully covered by the decision' in the former appeal between the same parties, 68 Md., 100. The plaintiffs’ case is simply this: They are the owners of'a house in Erostburg, at the corner of Bowery and Charles streets; and the defendant corporation in grading Bowery street, diverted 'the natural flow of the surface water, and conveyed it by artificial gutters to a culvert or underground seioer, built across Bowery street, opposite the plaintiffs’ house, and in consequence of the negligent construction of the sewer, and neglect in keeping it-in proper repair, the surface water and drainage, instead of passing through it, dammed up at its mouth, and flooded the plaintiffs’ premises. Of all this, the defendant had notice, but- took nó steps to remedy such, defects.
As matter of defence, the defendant proved, that the sewer was properly constructed, and sufficient to carry off the surface water and drainage, except in extraordinary freshets, and that the injury complained of, was caused by the acts of the plaintiffs themselves, in deepening the cellar of the house, for the purpose of converting it into a basement room, and by removing the earth between the front basement wall and the street, in consequence of which the water flowed from the gutter along the street into the basement room of the house. The defendant further proved, that the ground behind the plaintiffs’ house was wet andspringy, and that water during wet seasons percolated through
In the former appeal, we said that if the defendant in grading Bowery street diverted the natural flow of the surface water, and conveyed it to the sewer in question, and that by reason of the negligent and unskillful construction of the sewer, the water dammed up at its mouth and flooded the plaintiffs’ poremises, and the defendant had notice of the defective construction of the sewer hut neglected to remedy the same, the plaintiffs were entitled to recover. And so the Court in granting the plaintiffs’ prayer, instructed'the jury.
On the other hand, if the sewer was skillfully constructed and in proper repair, and the plaintiffs brought the mischief on themselves by deepening the cellar, and by the removal of the earth between the front wall and the street, the defendant was not liable. The plaintiffs had the right of course to deepen the cellar of the house, and in so doing did not in any manner relieve the defendant of theresponsibilityof exercising reasonable care in the construction of the sewer. And there can he no objection therefore to the Court’s modification of the defendant’s first prayer.
But it is argued, that if the defendant did not divert or obstruct the natural flow of the surface water, the action will not lie, even though the sewer was negligently and unskillfully constructed. To this we cannot agree. The power under its charter to grade streets and build culverts and sewers, is a discretionary power, to be exercised by the city authorities whenever in their judgment the public good required .it. For the non-exercise of such a power no action it is true will lie, but if they undertake to build a culvert or sewer for the purpose of carrying off the surface water and drainage, they are bound to exercise reasonable care in the execution of the work. And if by reason of the
The principle of contributory negligence on which the fourth prayer is based, does not, it seems to us, have any application to the facts in this case. The plaintiffs’ house was injured by being flooded with surface water and drainage, caused, it is alleged, by the defendant’s negligence. Now the fact that the ground behind the plaintiffs’ house was wet and springy, and that water during wet seasons percolated through the back wall, is no reason why they should not recover for a separate and independent injury suffered in consequence of the negligent construction of the sewer across Bowery street. If there was negligence on the part of the plaintiffs in building their house upon a wet and springy piece of ground, such negligence has no connection whatever, with the negligence, of the defendant in the construction of this sewer. As to the measure of damages laid down by the Court, the defendant has no reason certainly to complain. If the sewer was unskillfully built, it was the duty of the defendant as we have said on notice, to have remedied the same. And yet the Court instructed the jury, if the defendant failed to take any steps within a reasonable time to remedy the defective construction of the server, and to prevent further injury to the plaintiffs’ property, and the plaintiffs themselves by the expenditure of thirty
As to the evidence offered in the first exception, we agree with the Court below, that it was inadmissible. The offer to prove that the entire levy for city purposes, if applied to the construction of drains, culverts, and sewers, would be insufficient .to protect all the property owners against injury from the natural flow of surface water during heavy rains, had no relevancy whatever to the question at issue. There was no legal obligation on the part of the defendant, to protect property owners against injury from the natural flow of the surface water, nor was there any legal obligation upon it to construct sewers for the escape of such water. If however it did undertake to exercise the discretionary power conferred by its charter, and to build culverts and sewers for the drainage of the City, they were bound, as we have said, to exercise reasonable care in the execution of the work. And if byreason of their negligence in this respect, the water • and drainage, instead of flowing through the sewer, dammed up at its mouth, and flooded the premises of an adjacent owner, the defendant is answerable for the injury.
Judgment affirmed.
