W. Md. R. Co. v. Martin

• Decision Date: 01 June 1909
• Citation: 73 A. 267,110 Md. 554
• Parties: WESTERN MARYLAND R. CO. v. MARTIN.
• Court: Maryland Court of Appeals

73 A. 267

110 Md. 554

WESTERN MARYLAND R. CO.

v. MARTIN.

Court of Appeals of Maryland.

June 1, 1909.

Appeal from Circuit Court, Frederick County; John C. Motter and James B. Henderson, Judges.

Action by John B. Martin against the Western Maryland Railroad Company. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

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

Milton G. Urner and Benj. F. Crouse, for appellant.

A. C. Strite and Charles D. Wagaman, for appellee.

SCHMUCKER, J. This is an appeal from a judgment of the circuit court for Frederick county for damages in an action on the case for nuisance. The suit was brought in Washington county, and removed for trial to Frederick county, where the judgment appealed from was obtained. The cause of action was an alleged injury to a farm and buildings owned by the appellee, arising from the ponding back of water thereon, caused by the construction, across a stream and ravine, by the appellant railroad company of an embankment with a culvert of insufficient size for the passage of the waters of the stream and ravine in times of ordinary freshets. The farm was rented to a tenant, and was in his possession at the time of the injury complained of and at the trial of the case, and the cause of action set out in the declaration is distinctly declared to be the injury to the plaintiff's "reversionary interest" in the property. The immediate injury to the property was done during a freshet occurring on the afternoon of June 17, 1906. The declaration contains two counts, in each of which the injury for which damages are claimed is alleged to have been that "the plaintiff's dwelling houses were flooded and ruined; the household furniture therein greatly damaged; fences washed away; fruit trees, orchard products, and growing crops destroyed; wells and cisterns filled with mud and debris, meadow lands along said stream made miry and untillable; buildings washed away and destroyed, and other damages to the plaintiff then and there," etc. The nuisance, to the existence of which the alleged injuries are attributed, is differently described in the two counts of the declaration. The first count alleges that the "culvert is entirely too small for the free passage of the waters of said stream and the surface waters flowing in said ravine, so that the said stream and ravine now become dammed and choked up, and the waters thereof are ponded back upon the plaintiff's land, to the great nuisance of the plaintiff." The second count alleges that the railroad company "negligently constructed, and improperly placed, a culvert under its said track for the passage of the waters of said stream, and that in times of freshets, such as are wont to occur in said ravine, the said culvert is entirely too small for the free passage of the waters of said stream, and the surface waters flowing in said ravine, and fence rails, brush, loose timber, and such other débris as said stream and such surface water usually carry with them, so that the said stream and ravine now becomes dammed and choked up, and the waters thereof are ponded back upon the plaintiff's land, to the great nuisance of the plaintiff," etc. The railroad company, as defendant below, pleaded the general issue, and, after the removal of the case to the circuit court for Frederick county, its trial before a jury resulted in a judgment for the plaintiff of $3,254.

The record contains 13 bills of exceptions, of which 11 relate to rulings on evidence, and 2 to the court's action on the prayers. There is evidence in the record tending to show that the Western Maryland Railroad Company's line crossed a creek, in Washington county, known as "Camp Spring creek," at a point a short distance south of and below the appellee's farm. Prior to the year 1906 the railroad tracks crossed this creek, and the depression or valley through which it runs, On a trestle about 175 feet long at the bottom, and about 43 feet high where it crossed the creek. In the spring of 1906 this trestle was replaced by a solid fill or embankment, under which a culvert was constructed at the crossing of the creek. The normal current of water in the creek through the appellee's farm was only about 6 feet wide and 6 inches deep, but, as the valley ran along the base of a mountain, it was liable to rapidly increase in volume in times of sudden rains or freshets. The culvert was 9 feet wide at its base, 10 feet wide at the springing of the arch, and 11 feet high, giving an opening of 96 square feet to receive the water. There is technical testimony of engineers in the record tending to show that, considering the topography of the vicinity, the dimensions of the culvert are larger than necessary to provide for the watershed drained by the creek for the passage of which it was built, and other testimony tending to show that, even if its capacity be adequate to permit the passage of all of the waters of the stream and ravine, its location and shape are such as to cause the flooding of the appellee's farm and buildings before its full capacity can be utilized. The record also contains much evidence, both pro and con, upon the question whether the freshet of June 17, 1906, during which the appellee's land and buildings were injured, was such as, by the exercise of ordinary care and prudence, might have been anticipated, or was an unusual and extraordinary one. We refrain from further reference to the testimony upon these controverted issues, as they are plainly questions of fact for the jury, as is also the question, as to which the testimony is conflicting, whether the railroad company had been negligent in closing up the embankment before the sheet piling used in constructing the culvert had been removed from its interior.

The testimony as to the nature and extent of the injury done by the freshet of June 17, 1906, much of which was admitted, over objections to be hereafter noticed, tends to show that, upon that occasion, the north end of the culvert, into which the water flows, became jammed with débris of various kinds, including brush, rails, hay, the fragments of a bridge which had been washed away from higher up the stream, portions of the roof of a building, all of which had come down on the swollen stream. A piece of timber became wedged across the mouth of the culvert, and held this jammed débris in position for several hours, causing the water to back up upon and over portions of the appellee's farm until it rose to a depth of 5 or 6 feet in the two dwellings erected thereon, one of which was occupied by him, and the other by his tenant, and damaged the carpets and furniture in the rooms which it entered. The water thus ponded back submerged about one-half of the 14 acres of meadow land belonging to the farm, and about 3 acres of its upper fields, destroying the corn and grass crops growing thereon. The houses stood near the bed of the creek, at an elevation of 4 or 5 feet above its ordinary level. The house occupied by the appellee was 800 feet from the culvert. A large spring, known as "Big spring," lying between the plaintiff's farm and the railroad embankment, was also flooded, and a deposit of mud several feet deep was left in the spring when the flood water receded from it. This deposit almost entirely stopped the flow of water into the spring from its usual sources of supply. When the mud was drained off from the spring, the normal flow of water into it gradually returned. It was testified by different witnesses, subject to exception, that, several weeks after the freshet of June 17, 1906, but before the flow of water into the Big spring had been fully restored, wet places and springs of water appeared all over the meadow land of the appellee, only one-half of which had been flooded by the freshet. About 10 acres of the meadow was thus turned into a marsh, and rendered untillable, and it had not fully dried out at the time of the trial. This meadow land is about 700 or 800 feet distant from the Big spring, and upon a higher grade. There is also testimony, taken subject to exception, tending to show that the water which thus appeared in the meadow was of the same temperature as that of Big spring, and similar to it in appearance, and that, as the flow of water in the spring increased, the flow in the meadows decreased, and that, if a pool of water, which appeared near the appellee's barn when the springs appeared in the meadow, was made muddy, the water in the Big spring became cloudy. There is also testimony tending to show that upon the occurrence of another heavy rain on August 27, 1906, the water in the creek again backed up, until it was almost on a level with the first floor of the appellee's house, and that it had never done so before the erection of the railroad embankment. At the close of the testimony in the trial below the plaintiff offered three prayers, and the defendant offered 16. The court granted all of the plaintiff's prayers, and the eighth, ninth, tenth, eleventh, twelfth, thirteenth, fourteenth, and sixteenth of the defendant's, and rejected its other prayers.

The plaintiff's first prayer, in substance, instructed the jury that, if they found that prior to the construction of the embankment and culvert, the waters of the creek, including storm and freshet waters, were accustomed to run unobstructed in their flow, and that the culvert is of insufficient capacity to carry off the water, which the defendant, by the exercise of ordinary care and prudence, might reasonably have anticipated and expected to be in the creek and the depression through which it ran, and further found that by reason thereof in the summer of 1906 the said waters were ponded back and overflowed the plaintiff's property, and that he was injured thereby, and that but for the embankment and the insufficient capacity of the culvert the injuries would not have occurred, then the plaintiff was...