Miller v. Fisher

• Decision Date: 30 June 1909
• Citation: 111 Md. 91,73 A. 891
• Parties: MILLER v. FISHER.
• Court: Maryland Court of Appeals

73 A. 891

111 Md. 91

MILLER

v. FISHER.

Court of Appeals of Maryland.

June 30, 1909.

Appeal from Superior Court of Baltimore City; Henry D. Harlan, Judge.

Action by Anna Fisher against Bessie Miller for a nuisance. Judgment for plaintiff, and defendant appeals. Affirmed.

Argued before BOYD, C. J., and BRISCOE, PEARCE, SCHMUCKER, BURKE, WORTHINGTON, THOMAS, and HENRY, JJ.

Geo. E. Robinson and O. Parker Baker, for appellant.

Emanuel E. Ottenheimer, for appellee.

WORTHINGTON, J. The appellant and appellee in this case are the owners of adjoining properties, located on Dallas street in Baltimore city. The suit was brought by the latter against the former to recover damages for alleged injuries caused to plaintiff's property by the overflow, from alleged defective and insufficient drainage pipes of the defendant, of foul and polluted waters toward and upon the property of the plaintiff. The material allegations of the declaration are substantially as follows: That during a period of time beginning on or about the 1st of June, 1906, and continuing to December 3, 1907, the defendant created, continued, and maintained a nuisance on her premises, and was still continuing and maintaining said nuisance, to wit, a broken, disconnected, and entirely insufficient drain and drainage pipes to properly carry off the refuse water, waste, and filth from the various portions of the defendant's property, and that refuse matter and surface water from defendant's premises were not properly confined in suitable drain pipes, but were absorbed into the earth, and permeated, passed, and flowed along and through the earth towards and in the direction of the plaintiff's property, and made their way into the yard and dwelling rooms of the plaintiff, thereby filling the houses with impure, obnoxious, and polluted water in great and continued volume, and causing the plaintiff's property to become so tainted and foul with unhealthful and impure air and gases as to render it dangerous to inhabit the houses, and further causing said property to depreciate in value. The declaration also alleged that both the defendant's and plaintiff's properties were, during the existence of the nuisance complained of, occupied by tenants, that notice had been given defendant of the existence of the nuisance and the injury sustained thereby, but that defendant failed to abate the nuisance, but negligently repaired the insufficient drains, and refused to supply sufficient drains to carry off the waters from her premises, so as to prevent injury to the plaintiff's property.

A demurrer was entered to the declaration, upon the ground that as it appeared by the declaration that the defendant's premises were occupied by tenants, and the landlord was not responsible for any defects therein, unless it was shown that such defects existed prior to the beginning of the tenancy, and that the landlord had or ought to have had knowledge of the same, citing Taylor on Landlord and Tenant, p. 175, where it is said by that author: "Possession of property is what determines liability. When the owner has parted with his control, the tenant has the burden of the proper keeping of the premises, and for any nuisance then found thereon the tenant is the party responsible, and not the landlord." This is undoubtedly well-established doctrine, and so recognized by this court. Smith v. Walsh, 92 Md. 518, 48 Atl. 92, 51 L. R. A. 772. But it is also true that where injuries result to a third person from the faulty or defective constructive of the premises,...