N.Y., P. & N. R. Co. v. Jones

CourtCourt of Appeals of Maryland
Writing for the CourtPEARCE, J.
Citation50 A. 423,64 Md. 24
PartiesNEW YORK, P. & N. R. CO. v. JONES.
Decision Date21 November 1901
50 A. 423
64 Md. 24

NEW YORK, P. & N. R. CO.
v.
JONES.

Court of Appeals of Maryland.

Nov. 21, 1901.


50 A. 423

Appeal from circuit court, Wicomico county; Chas. F. Holland and Henry Lloyd, Judges.

Action by Benjamin S. Jones against the New York, Philadelphia & Norfolk Railroad Company. From a judgment for plaintiff, defendant appeals. Reversed.

Argued before McSHERRY, C. J., and FOWLER, BRISCOE, BOYD, PEARCE, and SCHMUCKER, JJ.

Miles & Stanford and Jas. E. Ellegood, for appellant.

Melvin & Handy, for appellee.

PEARCE, J. This suit was brought by the appellee, who is the owner of a farm in Worcester county, Md., to recover damages for injuries alleged to be caused to the appellee's farm by large quantities of water east upon it as a result of the construction of appellant's railroad. The declaration contains two counts,—the first alleging that defendant broke and entered the plaintiff's lands, and flooded the same with water; and the second alleging that by reason of the erection of an embankment upon which the track of the railroad was laid, and the cutting of ditches on the sides of this embankment, a large body of, water was collected and emptied into a ditch which led from the railroad to and through plaintiff's lands, greatly in excess of the quantity which came down before the construction of said railroad, and greatly in excess of the capacity of said ditch, whereby plaintiff's lands were rendered unfit for cultivation or for any beneficial use. The defendant pleaded: First, that it did not commit the wrongs alleged; second, the defendant's license; and, third, that what was complained of by plaintiff was merely a user of defendant's right of way to which it was entitled. The plaintiff Joined issue on the first plea, to the second he replied he did not give the license alleged, and to the third plea he demurred.

50 A. 424

The demurrer was sustained, and issue was then joined on the replication to the second plea. The third plea was nothing more than a denial of the right to recover, and nothing more nor less than the general issue plea, and was therefore bad. Miller v. Miller, 41 Md. 623; Keedy v. Long, 71 Md. 388, 18 Atl. 704, 5 L. R. A. 759. But the appellant claims that the declaration was defective, and that, as the demurrer mounts to the first error, it should have been overruled— First, because it was a misjoinder of counts; and, second, because the second count is bad in substance. It has been decided, however, in Gladfelter v. Walker, 40 Md. 1, that a count for entering and breaking the plaintiff's close was properly joined with counts for polluting a stream of water to the use of which, in its natural state, he was entitled. There is therefore no misjoinder of counts. Nor do we discover any defect in the second count. The only defect suggested is the omission to charge that the acts complained of were wrongfully done, but the form of this count is in substantial accord with the form set forth in the Code (article 75, § 23, subsec. 32) for diversion of a stream, where the word "wrongfully" is not used; and Mr. Poe, in his work on Pleading (section 581), refers to the form above mentioned as a proper form, saying that any plain statement of the plaintiff's right and of its wrongful invasion will be sufficient. The wrongful character of the act here complained of sufficiently appears from the averment that it brought down upon the plaintiff's lands an increased flow and volume of water in excess of any former servitude imposed on said lands. But, even if this second count were bad, the demurrer would not reach the declaration, since one good count would remain.

During the trial, 10 exceptions were taken; the seventh and tenth being to rulings upon the prayers, and all the others being to rulings upon questions of evidence, of which the ninth was abandoned at the argument in this court. Before considering these exceptions, it will be well to state briefly the physical features of the locality, and the theory upon which the case seems to have been presented below. The suit was brought in Worcester county, and was removed for trial to Wicomico county, after a warrant of resurvey had been issued on the application of the plaintiff, and had been returned to the court from which it issued. There was no defense taken on warrant, and there was no question of title involved depending upon conflicting pretensions or disputed lines; but the case seems to have been regarded by the court as if these matters were involved, and the admission of evidence to have been restricted accordingly. The certificate and plat shows that the New York, Philadelphia & Norfolk Railroad, at the point nearest to the plaintiff's lands, runs south from Pocomoke City, and passes through a large swamp, known as "Dun Swamp," crossing, in its passage through the swamp, an old ditch, which had been cut by the landholders of the neighborhood to drain the lands to the west of said swamp, which ditch is known as the "Main Lead Ditch," and runs in a meandering southwest course from a point some distance to the east of the railroad for about a mile and a half, when it crosses a county road known as the "Wagram Road," where it enters the plaintiff's lands. From that point it continues on a southwest course through the plaintiff's lands, after leaving which it runs in a southerly course for a mile or more, until it pours into Lamden's mill pond, the overflow of which runs still further south into Pitt's creek, a tributary of Pocomoke river. In constructing the railroad through this swamp it became necessary to erect a heavy embankment in order to secure a solid foundation for its tracks. In order to drain the railroad's right of way, and to keep this embankment firm and solid, it was necessary to cut ditches on both sides of this embankment; and, in order to prevent backing up the water upon the lands east of the embankment, it was necessary to put in a culvert under the embankment at the point where the railroad crossed the main lead ditch, that being the lowest point on the railroad in that vicinity. The flow of these lateral ditches above the culvert was south, and the flow of those below was north, thus concentrating the flow of both directions at the culvert; and the plaintiff's claim is that this brought down into the main lead ditch a much larger body of water than had ever before come down, and greatly in excess of the capacity of the main lead ditch causing great damage and injury to his land.

The first exception was taken to the ruling of the court in permitting the surveyor who executed the warrant, while explaining the plat, to testify to the altitude of certain points on the plot above mean tide level by reference to certain letters and figures said to have been placed by the United States geological survey upon certain trees, posts, and bridges located on the plat. Upon being questioned by the court as to his knowledge of the purpose and meaning of these marks, he admitted that he did not see the marks put there, and that he had no actual, immediate knowledge of their significance, but said "the same kind of marks were put up all through that section by the survey"; that he had seen them engaged in their...

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6 practice notes
  • Garmany v. Southern Ry. Co, (No. 12731.)
    • United States
    • United States State Supreme Court of South Carolina
    • September 18, 1929
    ...L. R. A. 424; Lessenger v. City of Harlan, 84 Iowa, 172, 168 N. W. 803, 5 A. L. R. 1523; New. York, etc., R. Co. v. Jones, 94 Md. 24, 50 A. 423; Cox v. Odel, 1 Cal. App. 682, 82 P. 1086; Drew v. Hicks, 4 Cal. Unrep. Cas. 440, 35 P. 563; Wood v. Moulton, 146 Cal. 317, 80 P. 92; Hoganon v. Ra......
  • Evans v. Cheyenne Cement, Stone & Brick Company, 673
    • United States
    • United States State Supreme Court of Wyoming
    • March 24, 1913
    ...Co., (Wash.) 79 P. 1103; Sigafus v. Porter, 179 U.S. 116; Denver &c. R. Co. v. Robinson, (Colo.) 40 P. 840; Ry. Co. v. Jones, (Md.) 50 A. 423; Keener v. Baker, 93 F. 377; Ratliff v. Ratliff, 131 N.C. 425, 63 L. R. A. 963; United Rys. &c. v. State (Md.), 49 A. 923; Lowe v. Ry. Co. (C......
  • St. Louis, Iron Mountain & Southern Railway Co. v. Magness
    • United States
    • Supreme Court of Arkansas
    • December 13, 1909
    ...19 S.W. 1025; 3 Penn. (Del.) 407; 54 A. 687; 114 Tenn. 579; 86 S.W. 1074; 80 Minn. 9; 82 N.W. 979; 118 Ill. 487; 9 N.E. 203; 94 Ind. 24; 50 A. 423. OPINION [123 S.W. 788] [93 Ark. 51] WOOD, J., (after stating the facts). The waters that flowed through the new channel of Thomas Creek as stra......
  • Cleveland, Cincinnati, Chicago And St. Louis Railway Company v. Griswold, 7,503
    • United States
    • Indiana Court of Appeals of Indiana
    • March 27, 1912
    ...Central, [51 Ind.App. 506] etc., R. Co. v. Windham (1899), 126 Ala. 552, 28 So. 392; New York, etc., R. Co. v. Jones (1901), 94 Md. 24, 37, 50 A. 423. Appellant in changing the grade and reconstructing and rebuilding its right of way had the right, under these authorities, properly to drain......
  • Request a trial to view additional results
6 cases
  • Garmany v. Southern Ry. Co, (No. 12731.)
    • United States
    • United States State Supreme Court of South Carolina
    • September 18, 1929
    ...L. R. A. 424; Lessenger v. City of Harlan, 84 Iowa, 172, 168 N. W. 803, 5 A. L. R. 1523; New. York, etc., R. Co. v. Jones, 94 Md. 24, 50 A. 423; Cox v. Odel, 1 Cal. App. 682, 82 P. 1086; Drew v. Hicks, 4 Cal. Unrep. Cas. 440, 35 P. 563; Wood v. Moulton, 146 Cal. 317, 80 P. 92; Hoganon v. Ra......
  • Evans v. Cheyenne Cement, Stone & Brick Company, 673
    • United States
    • United States State Supreme Court of Wyoming
    • March 24, 1913
    ...Co., (Wash.) 79 P. 1103; Sigafus v. Porter, 179 U.S. 116; Denver &c. R. Co. v. Robinson, (Colo.) 40 P. 840; Ry. Co. v. Jones, (Md.) 50 A. 423; Keener v. Baker, 93 F. 377; Ratliff v. Ratliff, 131 N.C. 425, 63 L. R. A. 963; United Rys. &c. v. State (Md.), 49 A. 923; Lowe v. Ry. Co. (C......
  • St. Louis, Iron Mountain & Southern Railway Co. v. Magness
    • United States
    • Supreme Court of Arkansas
    • December 13, 1909
    ...19 S.W. 1025; 3 Penn. (Del.) 407; 54 A. 687; 114 Tenn. 579; 86 S.W. 1074; 80 Minn. 9; 82 N.W. 979; 118 Ill. 487; 9 N.E. 203; 94 Ind. 24; 50 A. 423. OPINION [123 S.W. 788] [93 Ark. 51] WOOD, J., (after stating the facts). The waters that flowed through the new channel of Thomas Creek as stra......
  • Cleveland, Cincinnati, Chicago And St. Louis Railway Company v. Griswold, 7,503
    • United States
    • Indiana Court of Appeals of Indiana
    • March 27, 1912
    ...Central, [51 Ind.App. 506] etc., R. Co. v. Windham (1899), 126 Ala. 552, 28 So. 392; New York, etc., R. Co. v. Jones (1901), 94 Md. 24, 37, 50 A. 423. Appellant in changing the grade and reconstructing and rebuilding its right of way had the right, under these authorities, properly to drain......
  • Request a trial to view additional results

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