City of Cumberland v. Willison

• Citation: 50 Md. 138
• Parties: THE MAYOR AND CITY COUNCIL OF CUMBERLAND v. ASABEL WILLISON.
• Decision Date: 19 December 1878
• Court: Court of Appeals of Maryland

50 Md. 138

THE MAYOR AND CITY COUNCIL OF CUMBERLAND v. ASABEL WILLISON.

Court of Appeals of Maryland

December 19, 1878

Appeal from the Circuit Court for Montgomery County.

The conceded facts of this case (which was removed from the Circuit Court for Allegany County,) and the substance of the prayers offered by the plaintiff and defendant are stated in the opinion of the court. The defendant excepted to the rulings of the court below, (Bowie, Bouic and Lynch, JJ.,) and the verdict and judgment being for the plaintiff, the defendant appealed.

The cause was argued before BARTOL, C.J., BRENT, MILLER and ALVEY, JJ.

R T. Semmes and H. W. Hoffman, for the appellant.

A municipal corporation is not responsible in an action on the case for consequential injuries, arising from the proper and careful discharge of the duties imposed upon it by the Legislature.

To show that this is the law of almost every State in the United States, as well as in England, the appellant refers to 2 Dillon on Mun. Corp., secs. 781, 783, 784 and notes, 797 798; Collender v. Marsh, 1 Pick. 418; Radcliff v. Brooklyn, 4 Comst. 195; Sprague v Worcester, 13 Gray, 193; Wheeler v. Worcester, 10 Allen, 591; City of Delphi v. Evans, 36 Ind. 90; Munn v. Pittsburg, 40 Pa. St. 364; 4 Greene, (Iowa,) 47; Brine v. R. R. Co., 110 E. C. L. 402, 411; Mersey Docks Cases, 11 H. L. 713, 714.

In all of these case, the case of Plate Glass Co. v Meredith, 4 Term, 749, quoted in 2 Bing. 156, is recognized as authority, and we quote the language of Lord Kenyon: "If this action could be maintained, every turnpike Act, paving Act, and irrigation Act, would give rise to an infinity of actions. The parties are without remedy provided the commissioners do not exceed their jurisdiction." This we contend is the law of Maryland, and we refer the court to Barron v. Baltimore, 7 Pet. 243.

This same question has also been adjudicated upon directly by the Supreme Court of the United States, in which it has declared the power over its streets by a corporation to be a continuing power. Goszler v. Georgetown, 6 Wheat. 593; Smith v. Washington, 20 How. 135, 148; see also Bowlsby v. Spear, 31 N. J. Law, 352.

It only remains then to look at the several Acts of the Legislature to ascertain the powers of the City of Cumberland over its streets and the health of its inhabitants, to see that under the principles of law applicable to such cases the court erred in rejecting defendant's second prayer. Acts of 1815, ch. 136, sec. 6; 1844, ch. 288, sec. 2; 1864, ch. 121, sec. 6; 1874, ch. 100, sec. 47.

In addition to the principle which we claim to be a valid defense in this case, to wit: the proper exercise of our corporate powers, we further contend that the testimony in this case shows at most, damage resulting from the control and direction of surface water, which is a common enemy, and for which we contend no case can be found to justify the ruling of the court below. Rawston v. Taylor, 11 Exch. 369, 602.

If it were admitted in this case that the principle of prescription is applicable to the several rights involved, still we contend that in order to enable the plaintiff to recover, it should have been a condition of the instructions to the jury, that they should find that the plaintiff had acquired an easement by prescription, as against the prior uses and corporate privileges of the City of Cumberland, as distinguished from an easement acquired over the lands of private individuals. We think that such a prayer ought not to be granted in this case, because the facts show that ever since 1815, Cumberland has used the natural stream as an outlet for the surface water, and drainage of the surrounding country; and that the plaintiff's easement was used by him in a manner subservient to the city, and not antagonistic, and without interruption for twenty years, or any other period. From his own testimony it appears that he has cleaned out the race twice in every year, with a full knowledge of and in obedience to the City Ordinance in that respect, which is contained in printed Ordinances No. 20, p. 73. From such a state of facts it results as a necessity that any injuries suffered by the plaintiff must be damnum absque injuria, and he cannot recover. Smith v. Washington, 20 How. 135.

The principles which govern the acquisition of rights by prescription, it seems to us, are hardly applicable to the appellant in this case. This is not a question between the mill owner and riparian owners below him over whose lands he acquires a prescriptive right by twenty years' adversary use. The user even in such a case would of necessity be enjoyed only in the manner in which it had been enjoyed in the past, and that, by plaintiff's own admissions, involved the duty of cleaning out the tail race twice a year, in order to get the benefit of his uninterrupted flow of water. We think the court erred in granting the first and third prayers of the plaintiff and in rejecting the second prayer of defendant; and particularly when we believe that in its decisions it has upset the whole current of decisions upon the question involved, as enunciated in the courts of the several States, as well as those of the United States, and particularly that of our own Court of Appeals, in Barron v. Baltimore, supra.

The defendant's tenth prayer, was also improperly rejected. Under the Act of 1864, ch. 121, (Allegany County,) the defendant was invested with all the rights and powers necessary for the introduction of water into said city. And by sec. 19 of same Act: The Mayor and Councilmen of Cumberland are invested with the power and authority * * * to regulate the introduction and use of said water. 32 Vt. 367; 2 Dillon on Mun. Corp. sec. 545.

William M. Price, for the appellee.

The complaint is based upon an excessive user by the city, causing the destruction of the race; in other words, an entire taking of the property of the individual for the public benefit, without a compensation; a user beyond what it had acquired by long and continuous usage; and further, a granting of it to other private members of the corporation for their own private use, without just compensation to appellee.

Also the mere fact of turning the course of many of the gutters, etc., that carried the natural surface water into the race, at points where little or no injury was done, and emptying them in where they practically ruined the power, shows a degree of carelessness and negligence on its part that cannot be excused or palliated. The surface waters had accommodated themselves to the various drains, etc., and were emptied into the race at points where comparatively little or no harm had been done to the water power, but the appellant turns these several drains, and without showing any reason, other than perhaps to prevent the overflow of some other property holder, and at once empties them into the race immediately at the wheel, where the water is backed up and stops the power, this we say was criminal negligence on the appellant's part.

What has the city done here but take private property for public use?

In the first place, the appellee owns and keeps up the dam by which the flow of water is maintained in the race, otherwise there would be no water in the race eight months out of the year, and the city has conceded this by the payment of an annual sum ranging from $250 to $500 to the appellee, to assist him in cleaning thereout the filth deposited there by its sewers, etc.

2nd. The appellee is the absolute owner of the easement, which is worth, and for which he paid $10,000.

3rd. The appellant has, by its ordinances and permits, taken absolute control both of the dam and race, and governs the amount of water to be let in, and when it shall flow and when not, (see Ordinance,) and directs how private sewers shall be made to empty in, etc.

4th. It has changed the course of the surface water leading into the city, in such a way, as to throw it all into the race, and make of it the main sewer to carry the public and private drainage of the city to the canal and river, and out of the town, virtually ruining the water power and depriving the appellee of $10,000 worth of property for the benefit of the citizens, and refusing to pay therefor, when, if the race had not been taken, the city would, have been compelled to build a sewer to carry off its filth and drainage; if that is not taking private property for public use, without compensation, then we do not understand the meaning of the terms; if it is as we understand it, then we want no other authority than the one cited by the appellant; we also cite Eaton v. R. R. Co., 51 N.H. 504, where the learned Judge discusses the question of what constitutes the taking of private property for public use. The doctrine announced in that case has received the sanction of the Supreme Court of the United States, in 13 Wall. 168, 181, that court held that "where the real estate is actually invaded by superinduced additions of water, earth, sand, or other materials, or by having any artificial structure placed on it, so as effectually to destroy or impair its usefulness, it is a taking within the meaning of the Constitution." And Mr. Justice Miller, who delivered the opinion of the court, says, "this proposition is not in conflict with the weight of judicial authority in this country, and certainly not with sound principle." We confess we have not been able to see the difference between the property owned by the appellee and that set forth in the above opinion.

The creation of a sewer for city use, is a public thing, and therefore the property taken for that purpose is taken for a public purpose and must be paid for by the city.

The same principle is set out in all the authorities that we can...