City of Baltimore v. Merryman

• Decision Date: 04 January 1898
• Citation: 39 A. 98,86 Md. 584
• Parties: MAYOR, ETC., OF BALTIMORE v. MERRYMAN.
• Court: Maryland Court of Appeals

39 A. 98

86 Md. 584

MAYOR, ETC., OF BALTIMORE v. MERRYMAN.

Court of Appeals of Maryland

January 4, 1898

Appeal from circuit court, Harford county.

Action by Ellen Merryman against the mayor and city council of Baltimore for damages for building a dam across a stream. Judgment for plaintiff. Defendant appeals. Affirmed.

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

Thos I. Elliott and Thos. G. Hayes, for appellant. John I. Yellott and O. I. Yellott, for appellee.

BOYD J.

The appellee is the owner of a farm in Baltimore county bounding on a running stream of water called the "Great Gunpowder Falls." The appellant completed, in 1881, the erection of a dam across this stream, about four miles below the appellee's farm. The dam is a stone structure, 20 feet high above the natural bed of the stream, and the water is backed up by it about 800 or 1,000 feet north of Meredith's Ford bridge, which crosses the stream at the lower end of this farm. The plaintiff claims that the erection of the dam obstructed the flow of water along her farm, forced it back upon it, and thereby caused large deposits of sand, mud, dirt, and débris to collect and gather in the bed of the stream, which the defendant negligently permitted to remain there, whereby the stream became obstructed, filled, and choked up to such an extent as to cause the water to overflow her farm, and destroy the fencing, the crops, and vegetables growing on it, and large deposits of sand, mud, dirt, and filth to remain on it. It is also alleged that the defendant became the owner and possessor of the bed of the stream, the bank thereof, and the land contiguous thereto on either side for several miles below this farm. The dam and improvements were made in connection with the water supply of the defendant, the water being drawn from the lake into a conduit and eventually taken into the city. The plaintiff offered evidence tending to prove the above facts, and also that the water in the stream along her land is now a foot or more higher than it was before the dam was built. At the conclusion of the plaintiff's testimony the defendant offered two prayers. The first asked the court to instruct the jury that, under the pleadings, there was no legally sufficient evidence to entitle the plaintiff to recover; and the second, that, under the pleadings, there was no legally sufficient evidence to entitle the plaintiff to recover more than nominal damages. Both were rejected, and will be considered together.

That these prayers were properly rejected we think can admit of no reasonable doubt. It is true that the defendant was acting under powers granted it by the legislature when the dam and lake were made, but if in building them it caused the water to flow back, and remain on the plaintiff's property, or any part thereof, we can understand no reason why it could not be made to respond in damages for the injury sustained thereby. It is proven that the erection of the dam raised the water a foot or more higher than it formerly was on the bank of the stream along plaintiff's property. If that be true, and if this bank belonged to the plaintiff, as we understand to be conceded, although the record furnishes but little evidence on that subject, then there was undoubtedly a "taking" of some of her property, for which she was entitled to compensation. The defendant had no more authority to take a part of the bank of the stream, if it was the plaintiff's property, by covering it with water, and keeping it so covered for its own purposes, than it would have to go beyond the bank, excavate the plaintiff's land, flood it with water, and use it as the testimony shows other lands were used, lower down the stream, in making the lake. If it had been deemed necessary or proper to erect a dam or other structure on this property, in connection with this improvement, no one would suppose that it could be done without compensating the owner, and it seems to us to be equally clear that the plaintiff's land, or a part of it cannot be taken for storage of water; for, after all, that was what was done, so far as the bank is concerned, without just compensation.

The allegations in the declaration are that the dam, etc., of the defendant, caused large deposits of sand, mud, dirt, etc., to collect and gather in the bed of the stream, and that the defendant negligently and carelessly suffered and permitted such deposits to remain in the bed of the stream, where it flowed through and over the lands...