Kranz v. City of Baltimore
| Decision Date | 29 January 1886 |
| Parties | KRANZ v. MAYOR, ETC., OF BALTIMORE CITY. |
| Court | Maryland Court of Appeals |
Appeal from Baltimore city court.
Graham Gordon, for appellant.
Jas. L. McLane and Bernard Carter, for appellee.
This suit was brought on the ninth of March, 1885, by the appellant against the appellee, to recover damages occasioned by the bursting of "Chatsworth Run Sewer." The declaration contains three counts. The first alleges that the plaintiff is the owner of a house and lot on West Pratt street, where he carried on the tailoring business, and that this sewer commenced at the intersection of Pennsylvania avenue and Townsend street, a considerable distance north of his property, and, running south-westerly, passed under his house and lot, and continued southwardly for a long distance to the intersection of Scott and Ostrand streets; that it is a public or common sewer, under the charge and care of the defendant, and it was the duty of the defendant to exercise reasonable care, skill, and diligence in keeping the same in repair, and in repairing it when out of order; but that defendant, well knowing that it was out of repair, recklessly and at various times did not exercise reasonable care, skill and diligence in repairing the same and keeping it in proper order, and neglected so to do, whereby it did at various times, and particularly on the eleventh and thirty-first of July, 1884, and in many places, and particularly near to the property of the plaintiff, become out of order and repair, and filled with earth, stone, and sand, mud, filth, and other rubbish, and thereupon did burst and cave in near to the plaintiff's house, and his property was filled with large quantities of earth, sand, water, mud, filth, and other refuse matter, and his house and lot were made damp and unhealthful, and the plastering and papering on his house were destroyed, the walls of the house broken and undermined, a large quantity of his goods destroyed, his family and servants made sick, so that he lost their services, as well as his own, and his business was injured, and he was compelled to spend large sums of money in curing himself and servants, and in repairing his house. The second count differs from the first only in alleging that this was an underground drain or sewer, and that the defendant had, by long and legal usage, acquired the right to use it, and particularly that part thereof near to the plaintiff's property, to carry off large quantities of water, filth, and other drainage from the city. The third count alleges that the defendant had, for over 21 years, used this sewer or drain as a common sewer for the city, and that on and prior to the time when the damage sued for was done, it greatly needed cleaning and repairing, and that defendant, by its servants and agents, entered upon the work of cleaning and repairing it, near to plaintiff's property, but in doing such work did not exercise reasonable care, skill, and diligence, and that the damage complained of resulted from the want of such care, skill, and diligence in making such repairs.
The case was tried, upon issue joined, on the plea of non cul., and, after the plaintiff had closed his case, the court, at the instance of the defendant, instructed the jury "that there is no sufficient legal evidence in the cause of such negligence, on the part of the defendant, in the discharge of its legal obligations to the plaintiff, as would entitle the plaintiff to recover in this action," and counsel for the appellee seek to sustain this instruction upon two grounds: (1) That there is no legal obligation upon the city to keep this sewer in repair, where it passes under private property or elsewhere, than under public streets; (2) that there is no legally sufficient evidence in the case that the bursting of the sewer under the plaintiff's house was caused by any neglect of the city in the repair of such parts of it as the city was bound to repair, or was caused by negligence in the repairs actually being made at the time of the bursting.
1. The first proposition presents a question of some importance. It appears from the testimony that before the city had extended across and beyond it, what is now called "Chatsworth Run Sewer" was an open running stream called, in its lower part, "Wordfork Branch," and in its upper part "Chatsworth Creek," the bed of which was, of course, "private property." The city had by its charter "full power to pave and keep in repair all necessary drains and sewers, to pass all regulations necessary for the preservation of the same, and to authorize any person by them appointed for that purpose to enter upon the lots, grounds, and possessions of any person or body politic through which the common sewers run, or ought to run, to regulate, make, and repair the same." Code Pub. Local Laws, art. 4, § 835. Besides the oral testimony of plaintiff's witnesses, it was agreed that any ordinances of the mayor and city council relating to the subject should be read in this court, and we have been referred to a large number of them, extending back as far as the year 1829. It is not necessary to state these in detail. They show that, as streets were laid out to accommodate the growth of the city in this direction, these streets, when they crossed this stream, were carried over it by arched culverts or bridges, and where the stream ran along and within the limits of a street, it was also arched or tunneled, and the bed of it paved with stone. As the city was gradually built up along these streets, other ordinances and resolutions were passed, providing for the like tunneling and paving of this stream, between streets; and, in at least one case, where it passed through private property, the resolution provides that "the right to tunnel the same be secured without any expense for the right of way to the city." Others provide for the repairing of it in various places, and still others permit the construction of private drains from private houses to be connected...
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