Brooke v. Winters

• Decision Date: 17 February 1874
• Citation: 39 Md. 505
• Parties: HORACE L. BROOKE and others v. AIRHART WINTERS.
• Court: Maryland Court of Appeals

39 Md. 505

HORACE L. BROOKE and others v. AIRHART WINTERS.

Court of Appeals of Maryland

February 17, 1874

APPEAL from the Circuit Court for Baltimore County.

This was an action on the case brought by the appellee, against the appellants, in the Circuit Court for Carroll County, and subsequently removed at the instance of the defendants, into the Circuit Court for Baltimore County.The suit was instituted the 30th of April, 1870, and tried in April, 1873.The declaration averred that the plaintiff was possessed of a farm and mill, and entitled to the free and undisturbed flow of a stream of water for working said mill, and for other purposes, and that the defendants deposited large quantities of iron ore in said stream, above the plaintiff's mill and dwelling and stable, thereby discoloring the water, and causing it to flow in a corrupted and discolored condition into the dam of said mill, and near said other buildings of the plaintiff, and so injuring him in the use of said mill and farm.The second count stated that the plaintiff had put up costly machinery in his said mill, and used the water of said stream in the manufacture of whiting, and that the defendants by depositing large quantities of iron ore and earth in the said stream, had so corrupted and discolored the water thereof, as to deprive him of the proper use of his said mill, and had caused him damage in his said mill and business.The third count charged that the defendants had deposited large quantities of earth and mud and iron ore in the stream of the plaintiff, and in the dam of his mill, and greatly filled up and obstructed the same, and thereby injured the plaintiff in his mill and dam, &c.

Two exceptions were taken at the trial by the defendants; the first was not pressed in this Court, and the second is sufficiently set out in the Court's opinion.The verdict and judgment were for the plaintiff, and the defendants appealed.

The cause was argued before BARTOL, C.J., STEWART, MILLER and ROBINSON, J.

John T. Ensor and I. Nevett Steele, for the appellants.

D G. McIntosh, for the appellee.

STEWART J., delivered the opinion of the Court.

The plaintiff in the third count of his declaration, alleges that he is entitled to the free and undisturbed flow of the water of the stream into his mill and dam; and that the defendants had deposited large quantities of earth, mud and iron ore in the stream and dam, and greatly filled up and obstructed the same, to the injury of his dam and mill, for which he claims damages in this suit.

At the trial the plaintiff to maintain the issues on his part offered evidence to prove that the defendants have been engaged in mining and washing iron ore since the fall of 1868, about seven-eighths of a mile from his milldam, and had filled up the same with mud to such extent as seriously to affect his water-power--that for a period of seventeen years prior to the washing of the said ore, the mud did not accumulate in the dam over four or five inches--that from the time when the defendants commenced washing ore, to the institution of the suit, some eighteen months, the mud had accumulated in the dam, from twenty to twenty-four inches, and had destroyed two feet of his head of water over a part of the dam, and thus greatly deprived him of the use of water for working his mill--there was also evidence that the mill-dam had not been cleaned out at any time.

These facts were pertinent and material to the issue, and might...