Guest v. Commissioners of Church Hill

• Decision Date: 15 February 1900
• Citation: 45 A. 882,90 Md. 689
• Parties: GUEST v. COMMISSIONERS OF CHURCH HILL.
• Court: Maryland Court of Appeals

45 A. 882

90 Md. 689

GUEST v. COMMISSIONERS OF CHURCH HILL.

Court of Appeals of Maryland

February 15, 1900

Appeal from circuit court, Queen Anne's county; James A. Pearce Judge.

"To be officially reported."

Action by Joseph Guest against the commissioners of Church Hill. From a judgment in favor of defendant, plaintiff appeals. Reversed.

Argued before MCSHERRY, C.J., and PAGE, FOWLER, BOYD, JONES BRISCOE, and SCHMUCKER, JJ.

James P. Gorter, Hope H. Barroll, and Thomas J. Keating, for appellant. Edwin H. Brown, for appellee.

SCHMUCKER J.

The appellant, who is the owner of an improved lot of ground abutting on a public street in the town of Church Hill, sued the appellee for so changing the grade of the streets of the town as to divert its natural drainage, and collect from other parts of the town, and discharge upon his lot, large quantities of water, filth, and dirt. The declaration filed in the case contained four counts. The first and fourth counts averred, in substance, that formerly only a small quantity of water drained upon and over the appellant's lot, but the appellee had recently changed the grade of its streets, and diverted their natural drainage to such an extent as to collect into artificial drains and gutters and throw upon the lot 90 per cent. of the drainage of the entire town, composed of water, mud, and filth. These two counts also contained an affirmative allegation that the work of grading the streets and constructing the drains and gutters had been negligently and unskillfully done by the appellee. The second and third counts do not allege that the work upon the streets had been negligently or unskillfully done. The gravamen of the second is that by the change of grade in the streets the natural drainage of the surface water of the town was so diverted as to throw much larger quantities thereof on the appellant's lot than formerly fell thereon. The grievance alleged by the third was that the change made by the appellee in the grade and draining of the streets diverted from their natural flow and collected from other parts of the town large quantities of water, dirt, and filth, and caused them to accumulate in the street in front of the appellant's lot to such an extent as to create a nuisance, for the removal of which the appellee made no provision. The appellee joined issue on the first and fourth counts, and demurred to the second and third. The court below sustained the demurrer. The case went to trial on the issue joined, and, the appellant failing to prove negligence on the part of the appellee in executing the work in question, the verdict and judgment were for the defendant, and the plaintiff appealed. The appeal therefore, brings up for review the action of the circuit court in sustaining the demurrer to the second and third counts of the declaration, which, for the sake of greater clearness, we here insert in full. They are as follows: "(2) And for that the defendant for a long time heretofore has used the lot of the plaintiff in Church Hill, against the protest of the plaintiff, as a common drain or sewer for the town, and by draining its streets in a manner different from the way in which the same formerly naturally drained a much larger force of water now falls upon the said lot of the plaintiff than formerly fell thereon, and the plaintiff has laid out and expended large sums of money in repairing and erecting foundations, walls, and piers to avoid and to repair damage constantly caused by this act of the defendant; and the defendant, by the exercise of care and diligence, could have prevented this damage which the plaintiff has in the past sustained and now sustains by reason of the improper subjection of the plaintiff's land to the uses and purposes of the defendant. (3) And for that the plaintiff is the owner of a certain lot of land lying on the westerly side of the road or street leading through the town of Church Hill, in Queen Anne's county, to Centreville, which said lot of land is improved by a blacksmith and wheelwright shop, the same forming a valuable property, and through and over and on said lot of land of the plaintiff only a small amount of surface water formerly drained; and the waters from the center of said town never passed over or drained upon or through the plaintiff's lot, but the defendant, by changing the former natural drain of the streets and lots of said town, and by cutting down a hill which formerly prevented such waters as stood in other parts of the town from flowing through the plaintiff's lot, which said changes so made in grading and leveling said town caused large bodies of water, filth, and dirt to accumulate in the road and street in front of the plaintiff's said lot, at times from six inches to two feet in depth, which said water, filth, and dirt were forced in plaintiff's house, and over and upon his lot of land; and although it was the duty of the defendant, under its charter, to remove and provide for the removal of such an obstruction and nuisance as this body of water, filth, and dirt at its own expense, yet the defendant wholly disregarded its duty in this respect, whereby plaintiff suffered great loss and damage."

It does not appear from the record what corporate powers were granted to the appellee by the legislature, but as the case was argued upon the theory that it had adequate power to change the grade of its streets at discretion, we will assume such to be the fact. The powers and responsibilities of municipal corporations in dealing with the surface water and drainage have been the subject of frequent discussion in the courts and the resulting...