State v. Kent County Com'rs

• Court: Maryland Supreme Court
• Writing for the Court: McSHERRY, C.J.
• Citation: State v. Kent County Com'rs, 35 A. 62, 83 Md. 377 (Md. 1896)
• Decision Date: 16 June 1896
• Parties: STATE, TO USE OF JAMES ET AL. v. COMMISSIONERS OF KENT COUNTY.

35 A. 62

83 Md. 377

STATE, TO USE OF JAMES ET AL. v. COMMISSIONERS OF KENT COUNTY.

Court of Appeals of Maryland

June 16, 1896

Appeal from circuit court, Kent county.

Action by the state of Maryland, to the use of Hannah James and others, against the county commissioners of Kent county. Judgment for defendants, and plaintiffs appeal. Affirmed.

Argued before McSHERRY, C.J., and BRYAN, BRISCOE, PAGE, BOYD FOWLER, and ROBERTS, JJ.

H. H Barroll, for appellant.

H. W Vickers, for appellees.

McSHERRY C.J.

The declaration in this case alleges, in substance and effect that one of the public roads in Kent county, to wit, the public road which leads from Lankford to Rock Hall, was, by the wrongful act, neglect, and default of the county commissioners, suffered to be out of repair and unmended, so as to be impassable with safety; and that Lee James, the husband of Hannah James, and the father of Lee and Isaac James, the equitable plaintiffs, in traveling on and over the said road, and using due care, fell into the mill pond which adjoins said public road, and was drowned, in consequence of the wrongful neglect of the defendant in not keeping said public road in safe and proper condition. Upon the conclusion of the plaintiffs' evidence, the court, at the instance of the defendants, granted an instruction which withdrew the case from the jury, and from the judgment subsequently entered against the plaintiffs this appeal was taken. The granting of this instruction is the ruling complained of in the first exception.

The evidence shows that, in the public road alluded to, there is, between Price's or Connelly's Mill and St. Paul's Church, a considerable bend or curve, which, for brevity of description, may be likened to the segment of a circle; that opposite to and distant some 50 or 60 yards, at the furthest point, from the concavity of this curve, there was a mill dam, belonging to and being the property of the owner of the mill, and extending from the mill, at one end of the curve, to, or nearly to, a fence surrounding the churchyard, at the other end of the curve. This dam and a footpath connecting with it on the church side of the dam may be considered the chord of the above-mentioned curve or arc. In the breast of this dam there were automatic waste gates, which worked in frames made of timber; and, across the sills forming the tops of these frames, loose planks were laid, for the convenience of the mill employés when removing brush and other débris as it accumulated and obstructed the free play of the gates. It further appears that a prong of Lankford Bay extends across the curve in the public road, and that, as the tide rises, this portion of the road becomes, because inundated, more or less difficult to traverse by persons on foot. In consequence of this, and to avoid crossing this prong of the bay, it had been the habit of persons in the neighborhood, for upward of 50 years past, to leave the public road at the mill, on the one side, or near the church, on the other side, and to walk on the surface of the dam and on the loose planks over the wastegates, and thus to pass, by a short cut, from one point in the public road to another point in the same road, without going around the curve. About dusk on the evening of January 20, 1895, Lee James, the husband and father of the equitable plaintiffs, left the vicinity of the church, and started for his home on the mill side of the dam. Instead of walking around the curve in the county road, he took the shorter cut, across the breast of the dam. In an hour afterwards his dead body was found in the dam, at the waste gates,--a point distant at least 50 yards from the public highway. One of the sills showed traces of a footprint, and it seems probable that the deceased slipped as he stepped upon the sill, and that he then fell into the water, and was drowned. This action was brought to recover damages for the death thus occasioned.

It is perfectly obvious that if the place where the accident happened was not a public thoroughfare, or part of a public thoroughfare, which the county commissioners were under a legal obligation to keep in repair, its disrepair furnishes no evidence of negligence for which the county was amenable. This proposition is so self-evident that its statement is its demonstration. Now, confessedly, the man met his death, not in the known and established public highway, but upon private property, belonging to an individual, and located at least 50 yards distant from the county road. To avoid the inevitable result of such a situation,--the certain defeat of the plaintiff's claim against the county,--it was insisted that the long-continued user of the mill dam by the public in the manner hereinbefore stated converted the mill dam into a public highway, and, as a corollary, that the county commissioners were legally bound to keep the dam and the planks across the waste gates in proper repair, as a public road or thoroughfare, and that their failure and conceded omission to do this was actionable negligence, for which they were liable in the pending action.

There is no doubt that an owner of land may dedicate it to the public for a highway, but an intent on the part of the owner...