City of Baltimore v. Appold

• Decision Date: 03 June 1875
• Citation: 42 Md. 442
• Parties: THE MAYOR AND CITY COUNCIL OF BALTIMORE v. SAMUEL APPOLD.
• Court: Maryland Court of Appeals

42 Md. 442

THE MAYOR AND CITY COUNCIL OF BALTIMORE v. SAMUEL APPOLD.

Court of Appeals of Maryland

June 3, 1875

APPEAL from the Circuit Court for Baltimore County, sitting in Equity.

The bill of complaint in this case filed by the appellee alleges:

"1st. That he is the owner in fee-simple, and for several years last past has been such owner of a tract of land situated in Baltimorc County, in the State of Maryland, through which runs a stream of water called and known as 'Roland's Run,' and he herewith files, as Exhibit No. 1, a true copy of the deed under which he holds said land.

2nd. That said stream is a stream of considerable body, and flows in a regular course, and has so done for a time whereof the memory of man runneth not to the contrary, and is of great value to the land of your orator, through which it runs, and which binds upon it on both sides, as well for domestic as agricultural and manufacturing purposes; and the land of your orator on both sides of said stream, is nearly, if not all of a flat and level nature, and the banks of said stream are not more than sufficient to contain within them the waters of said stream, as they naturally flow during certain portions of the year.

3rd. That the Mayor and City Council of Baltimore, acting under the powers vested in the said city by the laws of the State of Maryland, for the purpose of conveying water into the said City of Baltimore, being the Act of 1853, ch. 376, the Act of 1868, ch. 467, the Act of 1862, ch. 240, have recently determined to conduct a portion of the waters of the Gunpowder River, a stream running through said Baltimore County, from said river, into Lake Roland, in said county from which latter lake the reservoirs which supply the City of Baltimore with water are supplied; that accordingly, in order so to conduct the waters of said river into said lake for said purpose, the City of Baltimore proceeded to acquire by purchase or condemnation, from the several owners thereof, the right of way or easement for conducting said water from the bank of the Gunpowder River, to and through the land of one Temperance Ellen Talbott, whose land binds on said 'Roland's Run,' above mentioned, a short distance above that of your orator; there being a number of distinct pieces or portions of land, in distinct and separate ownership, so lying on the route of said water-works or way, in the distance from the banks of said Gunpowder River to the said land of said T. Ellen Talbott; that having so acquired by purchase or condemnation the said rights of way or easement, paying for each of the same large sums of money, the said Mayor and City Council of Baltimore have laid through the said lands, intervening between the said Gunpowder River and the land of said T. Ellen Talbott, large iron pipes, designed to, and having the capacity to convey at least ten millions of gallons of water in every twenty-four hours, and have also erected at the said Gunpowder River, large and powerful engines and machinery, designed and able to force said quantity of water at least, if not more, through said pipes. That the object, plan, design and purpose of the said Mayor and City Council of Baltimore, in constructing said engines, machinery and pipes, is to convey as aforesaid at least 10,000,000 gallons of water in every twenty-four hours from the Gunpowder River into Lake Roland. And your orator avers and charges, that said works have been constructed since the passage of, and in execution and pursuance and to carry out the purposes of the Ordinance of the Mayor and City Council of Baltimore, approved Dec. 23rd, 1872, being Number 3 of the Ordinances of said city, of 1873, which your orator prays may be taken as a part of this, his bill of complaint, the same being herewith filed as Complainant's Exhibit No. 2; and he also prays that all other exhibits herewith filed, or hereafter to be filed, may be taken as part of this bill.

That said Mayor and City Council of Baltimore having thus acquired the right of way for, and laid, the said pipes through the lands intervening between the said Gunpowder river and the lands of said T. Ellen Talbott, design and purpose to stop and have so constructed as to stop said pipe line at this point, and to allow and cause the volume of water so to be brought through said pipes to flow out of the mouth of the same on to the said land of T. Ellen Talbott, at a point on the said 'Roland's Run,' as it passes through the said land, and thence to flow into 'Roland's Run' at said point, with the design and expectation that said water so coming from said pipes will flow along the bed of said 'Roland's Run' and mingling with its waters through the said land of T. Ellen Talbott, and from it on to the land of the next adjoining proprietor below her, and from said land on, to, through and over the land of your orator, (he owning the land separated from that of said T. Ellen Talbott by only one proprietor,) and from thence through and over the land of other owners into the aforesaid 'Lake Roland.'

That the land of your orator lies between the land of the said T. Ellen Talbott and the said Lake Roland, and lies on a lower grade than the land of said T. Ellen Talbott, and said Roland's Run flows from said land of said Talbott towards and across your orator's land in its course to said Lake Roland, and the water which will come out of said pipes on to said land of said Talbott, must and will of necessity flow from said land on to your orator's land, and is so designed to flow according to the plan and purpose of the said works constructed by the said Mayor and City Council of Baltimore, for the purpose of conducting the water of Gunpowder River into said Lake Roland.

That said Mayor and City Council of Baltimore have also acquired by condemnation the right to bring said water so coming and to come through said pipes on to said land of said T. Ellen Talbott, and to flow the same through and over the said land in its course towards the said Lake Roland, and have paid to her for said right a considerable sum of money, to wit, the sum of four thousand dollars, and paid to the owners of the estate known as "Hampton,' the sum of thirty thousand dollars for the simple privilege of laying the said pipes through their land, as well as considerable sums of money to other persons on the line taken by said pipe.

That said rights having now been acquired from the said T. Ellen Talbott, and said pipes having been laid, and being now ready for use all the way from the Gunpowder River to her land, and the requisite engines and machinery having been constructed, and being now ready for use, the Mayor and City Council are about at once to force the said Water of the Gunpowder River through said pipes on to the land of said Talbott, and from thence to conduct and cause it to flow in quantities of at least 10,000,000 of gallons in every twenty-four hours, on to and over the land of your orator, in its course to the same lake or body of water, which in the legislation of the State relating to the water-works of the City of Baltimore, is called 'Swann Lake.' Which said water so to be conducted into said Lake Roland is to form a part thereof. That said Mayor and City Council of Baltimore have taken no steps to acquire, and have not acquired from your orator, or from any previous owner of his land, any easement, right or title in said land, for the purpose of conducting said water over the same, or any other right or title in said land whatsoever, but intend and are about at once, and have declared that they intend to bring said large volume of water on to, and carry the same over the land of your orator, without acquiring any right or easement in said land for this purpose, or paying to your orator any compensation for the burden they thus propose to cast upon said land, and the right, or wrongs rather, they thus propose to exercise over his said land, giving as their excuse for this unlawful proceeding, that they expect said water to flow with and along the stream called 'Roland's Run,' which now runs through your orator's land as above mentioned.

And your orator further charges that none of the water which is so to be brought through said pipes, and caused to flow by the aforesaid artificial means on to the land of your orator, would otherwise come on to your orator's land, and none of the water from the said Gunpowder River can or would flow according to natural laws on to the land of your orator, said Gunpowder being distant at least three and one-half miles from said land of your orator, and its waters flowing away from and not towards his land, and said water so about to be brought in said pipes has to be forced through them, such is the grade of the intervening distance for a large part of the way by engines having a capacity of some seven hundred horse power.

And your orator further charges, that said Mayor and City Council have no right to bring said water thus about to be brought from said Gunpowder River, by said artificial means on to the land of your orator, unless they first acquire by purchase or condemnation the right to do so, even if it were true that said water when so brought, would necessarily run with, and be confined within the banks of the said 'Roland's Run,' as it flows through your orator's land, and your orator in this connection charges that he is credibly informed, believes and so charges that the banks of said stream have not capacity enough to carry the waters that by natural causes flow and drain it, together with the said additional quantity of 10,000,000 gallons in every twenty-four hours so proposed to be brought on said land, and that therefore said artificial addition to said stream will cause said stream to overflow its banks and cause great,...