Lohr v. Upper Potomac River Commission

• Decision Date: 26 May 1942
• Docket Number: 16.
• Citation: 26 A.2d 547,180 Md. 584
• Parties: LOHR v. UPPER POTOMAC RIVER COMMISSION.
• Court: Maryland Court of Appeals

26 A.2d 547

180 Md. 584

LOHR v. UPPER POTOMAC RIVER COMMISSION.

No. 16.

Court of Appeals of Maryland

May 26, 1942

Appeal from Circuit Court, Allegany County; William A. Huster Judge.

Action by Marion Lohr against the Upper Potomac River Commission for injuries allegedly sustained by the plaintiff and to her automobile by reason of rock and debris placed by the defendant in the public highway over which the plaintiff was traveling. From a judgment for the defendant, the plaintiff appeals.

Affirmed.

William L. Wilson, Jr., and Edward J. Ryan, both of Cumberland, for appellant.

William C. Walsh, of Cumberland (George W. Leege and W. Earle Cobey, both of Cumberland, on the brief), for appellee.

Before BOND, C.J., and SLOAN, DELAPLAINE, COLLINS FORSYTHE, and MARBURY, JJ.

FORSYTHE Judge.

This is an appeal from a judgment for the defendant entered by the Circuit Court for Allegany County after sustaining a demurrer filed by the defendant to the declaration filed by the plaintiff.

The declaration alleges that the plaintiff, appellant here, Miss Marion Lohr, a public school teacher, sustained injuries to herself, and to her automobile, by reason of the negligence of the servants of the appellee, the Upper Potomac River Commission, a body corporate, in placing large quantities of rock and debris in a public highway over which she was travelling.

The Upper Potomac River Commission was created by the General Assembly of Maryland, Acts of 1935, chapter 409. In section one of that Act it was provided that certain parts of Allegany and Garrett Counties should comprise the 'Upper Potomac River District,' and by section two the Commission of three members was created as a corporate body with the necessary power to employ personnel for carrying out the duties of the Commission therein imposed upon it.

In section three of the Act the powers and duties of the Commission are fully set out and described. It is therein provided that the Commission shall have 'the right to use a common seal, to sue and be sued, and to do any and all other corporate acts for the purpose of carrying out the provisions of this Act. The said Commission shall have the power and authority to regulate the flow of water in the Upper Potomac River and its tributary rivers and streams within said District, and in pursuance of such power may erect, build, install and maintain dams, reservoirs and such other structures, with appurtenances and machinery deemed necessary for regulating the flow of water of said rivers or streams within said District for the purpose of carrying out the provisions or intentions of this Act, and may enter into contracts and agreements with any Federal Agency, or State or County, for the better control of such flow of water.'

Section four of the Act authorizes the Commission to accept State Federal and private grants of money, or other aid, in carrying out its work. Sections five and six, important to keep in mind in this case, are as follows: 'That immediately after the passage of this Act and the organization of the Commission, it shall enter into such negotiations with such State or Federal Agencies as may be empowered to grant and/or furnish free funds to said Commission to carry out the purposes of this Act, and it is empowered to make any and all contracts and agreements requisite, for the purpose of obtaining, by free grant or gift all or any part of the amount of money necessary to purchase the land, structures or buildings or stream beds, water ways, road ways, rights of way, water rights or watersheds necessary to carry out the purposes of this Act, and for the construction of all dams, reservoirs, structures, appurtenances and machinery necessary for the control of the flow of water, as aforesaid, and for surveys and preliminary operations incidental to the construction of dams, reservoirs, etc., contemplated hereunder, and also to accept the same outright in the form of a free grant or gift. And in the event said Commission shall be successful in such negotiations and shall make contracts or agreements, for the obtaining of such free aid, then and in that event, it shall begin the operations required under such contracts or agreements, and in the manner set forth in said contracts or agreements, it being the intention of this Act that said Commission shall not bind itself nor the County Commissioners for Allegany or Garrett Counties to the expenditure of any moneys for the capital outlay necessary for the land, structures, dams, reservoirs, etc., or the preliminaries necessary for the acquisition or construction, except as is hereinafter provided for.'

Section six, in part, provides: 'The County Commissioners of Allegany County shall, in the event the Commission succeeds in obtaining the things necessary to properly control the flow of the waters contemplated by this Act annually levy upon the assessed property of said County a tax sufficient for maintaining and operating said dams, reservoirs, etc., and at least thirty days prior to the date of the making of the annual levy in said Allegany County, the said Commission shall certify under oath to the County Commissioners of Allegany County, the total amount of its outstanding monetary obligations as well as the estimated amount of money necessary to continue the operation and maintenance of said dams, reservoirs, etc., for the following fiscal year, and the said County Commissioners shall pay unto the Treasurer of the Commission the amount so levied in the same manner as the other expenses of said County are usually paid. In the event that the said Commission shall begin the operation and maintenance of said dams, reservoirs, etc., at a time after the signing of the levy for that particular year, the County Commissioners of Allegany County shall pay in like manner from their contingent fund, sums of money sufficient for the maintenance and operation for the balance of that fiscal...