Garitee v. City of Baltimore

Decision Date30 March 1880
CourtMaryland Court of Appeals

Appeal from the Superior Court of Baltimore City.

The case is stated in the opinion of the court.

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

Charles J. Bonaparte and George Hawkins Williams, for the appellant.

In this case it is submitted that in determining the rightfulness of the court's instruction, two questions are presented to this court, namely:

1. Can the Mayor and City Council of Baltimore or their officers agents or contractors, lawfully create what would otherwise be a public nuisance, in the navigable waters of the Patapsco River, by depositing in those waters the refuse removed from its harbor? And

2. If the defendants have no such right, has the plaintiff proved special damage to himself from this public nuisance entitling him to recover for it in a suit at law?

A naturally navigable stream of water is a public highway, and any obstruction to its use as such constitutes a nuisance. Rex v. Ward, 4 Ad. & El. 384; Rex v Grosvenor, 2 Starkie, 511; Respublica v Cauldwell, 1 Dallas, 150; People v. Vanderbilt, 26 N.Y. 287; Rose v. Mill, 4 M. & S. 101; Beach v. Schoff, 28 Pa. St. 195; Blanchard v. Tel Co. 60 N.Y. 510; Gilman v. Phila. 3 Wall. 713; Angell on Highways, secs. 53-72.

Occupants of land adjoining such a stream have a right to its use analogous to their property in an easement. Angell on Tidewaters, 171; Ball v. Slack, 2 Whart. 538; Cartelyon v. Van Bruntts, 2 John. 357; Yates v. Milwaukee, 10 Wall. 497; Buccleugh v. Metr. B. of W., L. R. 5 E. & J. App. 418; Chapman v. R. R. Co. 33 Wis. 629; Bowman v. Watten, 2 McLean, 376; Clement v. Burns, 43 N.H. 609; Day v. Day, 22 Md. 537; R. R. Co. v. Schurmeir, 7 Wall. 372; 7 Ind. 38; 10 Mich. 145-6.

This right could not be constitutionally abridged without compensation. Constitution of Md. Art. 3, sec. 40; Pumpelly v. Green Bay Co. 13 Wall. 166; Buccleugh v. Metr. B. of W. supra; Eaton v. R. R. Co. 51 N.H. 504; Lackland v. R. R. Co. 31 Mo. 180; Stetson v. Faxon, 19 Pick. 147, 158; Thayer v. Boston, 19 Pick. 511; Tate v. R. R. Co. 7 Ind. 479; Nevens v. Peoria, 41 Ill. 502.

The navigability of the Patapsco river is admitted by the pleadings in this cause, besides being clearly established by the proof, and is, moreover, part of the statute law of the State. Public Local Laws, Art. 4, secs. 793-796.

No act, therefore, allowing the city to deprive this plaintiff of his water front, without compensating him for its loss, would be valid. Constitution, Art. 3, sec. 40; 43 Md. 38.

But no such Act has been passed: the city's right under the statute is to preserve, not to obstruct, the navigable channel; its duty is to do precisely the opposite of what it has done, and, far from being exempted from liability for an obstruction placed by its agents in the channel, it would be responsible for such a nuisance, even if created by other persons. Balto. v. Marriott, 9 Md. 160; Balto. v. Pendleton, 15 Md. 12; Balto. v. Holmes, 39 Md. 243; Walter v. Comm'rs, 35 Md. 385; Comm'rs v. Baker, 44 Md. 1; Comm'rs v. Duckett, 20 Md. 470.

Any substantial injury caused by a public nuisance which the plaintiff's occupation or the situation of his person or property makes peculiar to him, differing not merely in degree, but in kind from that caused by it to other members of the community not so circumstanced, entitles him to sue the person guilty of creating the nuisance. Houck v. Wachter, 34 Md. 265; Brown v. Watson, 47 Maine, 161; Winterbottom v. Lord Derby, L. R. 2 Exch. 316; Carpenter v. Mann, 17 Wis. 155; Blanc v. Klumpke, 29 Cal. 156; Cook v. Corporation of Bath, L. R. 6 Eq. Cas. 177; Wood on Nuisance, secs. 618-676.

Here the plaintiff showed:

Loss of custom to his hotel as a pleasure resort; which was sufficient of itself. Morley v. Pragnall, Cro. Car. 510; Rose v. Groves, 12 L. J. C. P. 251; Wesson v. Iron Co. 13 Allen, 95.

Depreciation in value of his land; this also would be enough. Stetson v. Faxon, 19 Pick. 147; Francis v. Schoelkoppf, 53 N.Y. 162; Attorney-Gen. v. Earl of Lonsdale, L. R. 7 Eq. Cas. 390; Lansing v. Smith, 4 Wend. 10; Frink v. Lawrence, 20 Conn. 117; Dobson v. Blackmore, 16 L. J. Q. B. 233.

Loss of a lucrative sale, a very strong instance of special damage. Iveson v. Moore, 1 Ld. Raym. 486; Rose v. Miles, 4 M. & S. 101; Hughes v. Heiser, 1 Binn. (Pa.) 463; Greasley v. Codling, 2 Bing. 263; Powers v. Irish, 23 Mich. 429.

Discomfort from foul odors to occupants of his premises, and injury to their habitability. Soltan v. De Held, 9 E. L. & Eq. 102; Ross v. Butler, 4 C. E. Green, 294; Weir v. Kirk, 73 Pa. St. 284; Crooke v. Forbes, L. R. 5 Eq. 166; Ottawa G. L. Co. v. Thompson, 39 Ill. 598.

Upon four distinct grounds, therefore, the appellant is entitled to recover for the special damage, peculiar to himself and differing in kind as well as degree, from that suffered in common with all other members of the community, caused him by this public nuisance.

Argumenti gratia, this case has been hitherto assumed to be a private suit brought to recover for a public nuisance, it is, however, submitted, that speaking accurately, these obstructions were at once a public and a private nuisance; public, in so far as they interfered with navigation and injured fishing; private, as regarded the damage they did to the owners of adjoining property. Wood on Nuisances, secs. 641-653; Hamilton v. Whitridge, 11 Md. 128; R. R. Co. v. Stump, 8 G. & J. 479; Harrison v. Sterrett, 4 H. & McH. 540; Spencer v. R. R. Co. 8 Sim. 193; Sampson v. Smith, Ib. 272; Frink v. Lawrence, 20 Conn. 118; Corning v. Lowerre, 6 John. Ch. 439.

Should a new trial be awarded in this case, it will be material for this court to pass upon the admissibility of the evidence to the exclusion of which below the appellant's first exception was taken. This was in substance proof that the witness, Parr, who had already testified to his abandonment of one contract to purchase clay from the plaintiff on terms very advantageous to the latter, solely because these obstructions prevented his shipping it at a reasonable cost, afterwards made large purchases of similar clay from other persons which he could and would preferably have obtained from the plaintiff upon the terms of the abortive transaction above described, had not the latter's land been thus rendered artificially inaccessible.

It is submitted that the profits of these sales were as really lost to the appellant, because of the appellee's wrongful acts, as if the parties had gone through the vain form of making contracts which both then knew those acts had rendered impossible to perform. There was nothing vague or doubtful about the injury; it was so many dollars and cents out of the appellant's pocket, because, and because only of the appellee's dumping. Simmons v. Brown, 5 R.I. 299; Hamner v. Knowles, 6 H. & N. 454-459; Fult v. Wycoff, 25 Ind. 321; Gillett v. R. R. Co. 8 Allen, 560; Howes v. Ashfield, 99 Mass. 540; Albert v. R. R. Co. 2 Daly, (N. Y. C. P.) 389.

James L. McLane, City Counselor, and E. O. Hinkley, for the appellees.

1. A riparian owner has no such right to land under a navigable stream, as to prevent the State, or its agent, from filling up the stream in any manner which does not injure the general right of navigation; and if a riparian owner is damaged by such filling up, it is damnum absque injuria.

2. The riparian owner's rights, under Act of 1861-2, ch. 129, are not to be construed as in contravention of the State's right to fill up; the State intending only to preclude itself from granting the land to another by patent, as it had a right to do before that act; but not to preclude itself as to such owner from the exercise of any rights theretofore existing in it. Day v. Day, 22 Md. 530; Pollard v. Hagan, 3 How. 212.

3. The State has deputed to the municipality of Baltimore its right, or assigned to it the duty, as a subordinate branch of the government, and an agent for it, of keeping the harbor of Baltimore, and the channel approaching it, in proper order, and if the public is not injured, no private owner can complain of the exercise of this right.

4. If the plaintiff is not injured in a manner different in kind from the rest of the public, he has no right to complain, even if the city were proceeding unlawfully.

The injury to navigation is the same to all. The clay on his land being no more special to him than clay on the land of others, or than crops.

If what the city has done be a nuisance, the remedy is not by a civil action. Houck v. Wachter, 34 Md. 265; Acts of 1872, ch. 58; 1870, ch. 44; secs. 794, 795, Art. 4, P. L. L.

5. The State itself having prescribed the mode for redressing any injury of the kind complained of by plaintiff, no other mode can be used.

6. The evidence rejected was clearly inadmissible, because uncertain or conjectural profits cannot be used as the measure of damages.

It is to be distinctly noticed that the acts complained of were not committed on the plaintiff's land, but only the land covered with water; that is, on the land below low water mark. Independently of the Act of 1861-2, ch. 129, the State had a right to all the land under navigable waters. Day v. Day, 22 Md. 530; Martin v. Waddell, 16 Pet. 367; Smith v. Maryland, 18 How. 71; Browne v. Kennedy, 5 H. & J. 195; Pollard v. Hagan, 3 How. 212, affirming Martin v. Waddell.

The question of the rights of the State to the soil under the water must not be confounded with the right to wharf.

In some States it has been held that the State may grant the land, between high and low water-mark, out to private persons.

This doctrine has been...

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