Baltimore & S.P.R. Co. v. Hackett

• Decision Date: 10 February 1898
• Citation: 39 A. 510,87 Md. 224
• Parties: BALTIMORE & S. P. R. CO. v. HACKETT.
• Court: Maryland Court of Appeals

39 A. 510

87 Md. 224

BALTIMORE & S. P. R. CO. v. HACKETT.

Court of Appeals of Maryland

February 10, 1898

Appeal from circuit court, Harford county.

Action by William T. Hackett against the Baltimore & Sparrows Point Railroad Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Argued before MCSHERRY, C.J., and BRYAN, BRISCOE, RUSSUM, PAGE, and BOYD, JJ.

J Alex. Preston, Robert L. Preston, and W. W. Preston, for appellant. Frank I. Duncan and S. A. Williams, for appellee.

PAGE J.

The appellee was possessed of a tract of land in Baltimore county, upon which he was engaged in growing vegetables and other farm products for market. Through this land passes the railroad of the appellant. It is alleged in the narr, that the appellant did not "properly provide and maintain gutters and drains along and under its railroad for the natural drainage of the land adjacent thereto, and in consequence of which the premises of the appellee were flooded, and crops of vegetables and farm products were destroyed." The appellee is the lessee of the premises on which the damages alleged occurred. His property lies on both sides of and adjacent to the railroad. It slopes from the east to the west, so that prior to the construction of the railroad the surface water was carried off by natural drains and ditches running eastwardly and westwardly to Colgate creek. The bed of the road ran across these drains and ditches, and to take the water formerly carried by these a ditch was opened on the property of the railroad, and on the east side of the track, to Colgate creek. In the east, on top of the hill, which slopes rapidly to the railroad, is the barn of the appellant, from which a road runs to the crossing. The ditch on the company's property is parallel with the track, and a few feet therefrom. It extends from St Helena station to Colgate creek. At the farm crossing, where the road from the barn is about on a level with the tracks there is a culvert, intended to carry the flow of the water coming from the north. There are no drains from the east to the west side of the tracks. The land of the appellee on the west side of the track being higher towards the east, the surface water falling on it must flow down to the ditch, and be carried off therein. If this becomes obstructed, or is insufficient for the purpose, the water will be accumulated on the land of the appellee; and, should it be held back by the embankment of the railroad in sufficient quantities, it will eventually rise higher than the level of the farm crossing, and flow over and inundate the land of the appellee that lies on the west of the tracks. There was also evidence going to show that in June, 1896, the ditch had been permitted to become obstructed with débris of various kinds to such an extent as to be inadequate to carry off the water flowing into it from the higher land to the east and from St Helena station; so that on several occasions the water became so dammed up as that the land of the appellee on both the east and west sides of the track was inundated, and the crops thereon destroyed.

The first exception presents a question of evidence. The witness McLean has testified that he was a civil engineer, and had been engaged in the construction of rail ways, and that he knew the property of the appellant, and had made surveys of it, the results of which were shown on the plat offered in evidence. He then described the location of the appellant's tracks and the embankments, the slopes of the land of the appellee, and the provision made by the appellant for the water coming from the east and from St. Helena station. He was then asked by the counsel for the appellee whether, in his judgment as an engineer, "in view of the lay of the land," the railroad was properly constructed, "where there are no outlets to the west side," and, if so, "to what extent there should be outlets for proper drainage"; to which the witness replied that he thought "it would have been the part of good work to have located at different points cross drains, to have relieved the pressure of the water against the railroad, and also to have carried off that water." The ground of the objection, as stated in the brief of counsel, and insisted on at the argument, was that there was no obligation upon the defendant (the appellant), as against the appellee, to provide any drains under its tracks, for the reason that, the appellee having become possessed of the property after the construction of the railroad, any damage done by improper construction accrued to the former owner. It was therefore contended that the testimony sought to be elicited by the question and contained in the reply was irrelevant. The only case cited to support this position was that of Ortwine v. Mayor, etc., of City of Baltimore, 16 Md. 387. In that case the plaintiff sued the city to recover damages for injury done to his property by the wrongful and illegal act of the city in grading a city street. It appeared that the plaintiff became possessed of the property after the grading and paving of the street, and that the damage consisted in the formation of a gully through which the water passed. It was not shown that the water affected the property as a recurring nuisance, but that by the formation of the gully the property was intrinsically and permanently injured. The court held that such injury, having been occasioned before the plaintiff acquired his title, with a knowledge of its existence, furnished a cause of action which had not devolved on the plaintiff, but had accrued to the former owner. The case at bar is not of the same character. Here the complaint is that by reason of the failure of the appellant properly to construct and maintain its road, and to provide and maintain...