Walter v. Wicomico County Com'rs

• Decision Date: 15 March 1872
• Citation: 35 Md. 385
• Parties: JESSE WALTER v. THE COUNTY COMMISSIONERS OF WICOMICO COUNTY.
• Court: Maryland Court of Appeals

35 Md. 385

JESSE WALTER v. THE COUNTY COMMISSIONERS OF WICOMICO COUNTY.

Court of Appeals of Maryland

March 15, 1872

APPEAL from the Circuit Court for Worcester County.

The case is stated in the opinion of the Court.

The cause was argued before BARTOL, C.J., STEWART, BRENT, BOWIE GRASON, ALVEY and ROBINSON, J.

J W. Crisfield and Isaac D. Jones, for the appellant.

The appellees are the successors of the Commissioners of Somerset county, and are subjected to all their duties and obligations. Act 1868, ch. 50.

It is the duty of one who erects a nuisance to abate it. The Commissioners of Somerset county were bound to remove the nuisance placed in the stream by them; if then, their successors, with the duty and knowledge charged, neglected to remove it, and permit the water to flow, it is a continuance of the nuisance, and subjects them to damages for all consequential injuries.

A person who takes premises, upon which a nuisance exists, and continues it, takes them subject to all restrictions imposed on his predecessors. An action on the case lies against one erecting a nuisance, and one continuing a nuisance erected by another. Every continuance of a nuisance makes it a fresh one. Salmon vs. Bensley, 21 E. C. L. R., 414; Brent vs. Haddon, Cro. Jac., 555; Ryppon vs. Bowles, Cro. Jac., 373; Same vs. Barwish, Cro Jac., 231; Staple vs. Spring, 10 Mass., 72; Plumer vs. Harper, 3 New Hamp., 88; Moore vs. Browne, Dyer, 319.

An easement for a highway is more or less absolute, according to the terms of the grant or dedication. It may be conceded with or without condition, absolutely or only partially, and the public must take secundum formam doni. And where a dedication or grant is inferred from the user, it must be limited by it. Woolrych on Ways, 14; Marquis of Stafford vs. Coyney, 7 Barn. & Cress., 257, (14 Eng. C. L. R., 39;) Davies vs. Stephens, 7 Car. & Payne, 570, (32 E. C. L. R., 634.) This is the common law doctrine, and there is no statute of this State abrogating it, or forbidding the public to accept an easement for a highway on condition. Code, Art. 28; Day vs. Allender, 22 Md., 527, 528.

The final judgment was entered for the defendants improvidently and erroneously. To the first, second and fourth counts the defendants pleaded eighteen pleas; the first three to all of the said counts, the remaining fifteen to the fourth count only. The plaintiff joined issue on all these pleas, except the thirteenth, fifteenth and seventeenth, to which he demurred. The Court sustained the demurrer, and the case went to trial on the issues of fact, and the verdict was for the plaintiff. On the motion of the defendants the Court ordered a new trial. The defendants, then, on leave of the Court, filed their "additional plea" to the fourth count; the pleas already in, on which issues were made up, were not withdrawn, and the filing of the additional plea is not a withdrawal of those pleas. Gardiner vs. Miles, 5 Gill, 94. They remained without change, and the plaintiff was entitled to have them tried by the jury. To the "additional plea" to the fourth count, the plaintiff demurred. The Court overruled the demurrer, and immediately proceeded to render final judgment without noticing the issues of fact already framed, and which were never withdrawn or waived. This unquestionably was erroneous. Smith vs. Wood, 31 Md., 301; Horner vs. O'Laughlin, 29 Md., 470.

John H. Handy, for the appellees.

The appellees are not tenants, nor alienees; there is no privity whatever between them and the County Commissioners of Somerset; they are not the successors of these Commissioners; they are a corporation created independently, with the powers conferred, not devolved, on them of all the other County Commissioners in the State. They succeed to neither the sins nor the virtues of the Board who erected the nuisance; their powers and duties are original, conferred on them de novo. They are liable, if at all, then, under the pleadings, because of some general duty imposed on them by their official capacity. But had they been the successors of the County Commissioners of Somerset, they could not be held without notice and demand to remove. 1 Hilliard on Torts, p. 574, sec. 16 c.; Morris Co. vs. Ryerson, 3 Dutch., 457; Pickett vs. Condon, 18 Md., 412; Caldwell vs. Gale, 11 Mich., 77; McDonough vs. Gilman, 3 Allen, 264; Hughes vs. Mung, 3 H. & McH., 441.

There is no averment that the dam was older than the highway, and no facts averred from which it must be necessarily inferred.

But supposing there was such an averment, could the original donor encumber the highway with such an easement across and on it as the plaintiff claims? It is contended he could not. Moreover, the nar. avers that the road is a highway. But, if the donor had charged the donation with such an easement, it would have been void as a dedication, as a highway, and have been only a license revocable. Angell on Highways, secs. 140, 141; Poole vs. Huskinson, 11 M. & W., 827.

In the exercise of their legitimate powers, the County Commissioners may open new roads or alter old ones. Had the land below the plaintiff's mill been in the original owner, and application made to lay out and locate a public road across it, just in the place where this road runs, there can be no doubt of the powers of the County Commissioners to so locate and open it, notwithstanding it might be necessary to entirely destroy the plaintiff's mill rights. Yet the plaintiff could get no compensation, much less damages.

The County Commissioners would be indictable if they permitted such a nuisance to exist on the public highway unabated. The loss of the appellant is damnum absque injuria. Ely vs. Rochester, 26 Barb., 133; White vs. Yazoo, 27 Miss., 357; Dermont vs. Detroit, 4 Mich., 435; St. Louis vs. Gurno, 12 Mis., 414; Lambar vs. St. Louis, 15 Mis., 610; St. John vs. New York, 6 Duer, 315; Commonwealth vs. Upton, 6 Gray, 475; 1 Hilliard on Torts, ch. 19, sec. 19, p. 579, note (a;) James vs. Hayward, Cro. Car., 184; Angell on Highways, sec. 223, note 2.

The Court below did not err in rendering judgment on the demurrer of the plaintiff to the additional plea, whilst the issues of fact framed on the first, second and other issues on the pleas to the fourth count, were still untried and unwithdrawn.

The plaintiff did not object to the entry of the judgment, nor dispute the jurisdiction of the Court below to render such judgment. The point was not made below, and therefore cannot be raised here. O'Brien vs. Hardy, 3 H. & J., 434.

BRENT J., delivered the opinion of the Court.

This is an action brought against the Commissioners of Wicomico county to recover consequential damages for injury to the appellant's mills and dam from back water, occasioned by obstructions placed in the stream below the mills.

The principal questions arise upon demurrer, and involve the validity of the third count in the declaration, and the defendants' additional plea to the fourth count.

The third count charges that a public highway passed over and across the bed of the stream or water course below the dam and mills of the plaintiff, over which highway the waters of the said water course, after supplying the said mills, was accustomed to run and flow, and of right ought to run and flow, without obstruction, for the convenience, use and benefit of said mills, and for the protection and safety of said dam; that both mills and dam and public highway were in Somerset county, and so being in Somerset county, the commissioners of said county on the 10th day of June, 1864, &c., wrongfully, illegally and injuriously erected the obstructions complained of upon and across the bed of the said stream, &c., in the said highway; that afterwards that portion of Somerset county in which the premises were located became a part of Wicomico county, which was created after the obstructions were erected; that the defendants were afterwards created a corporation by law, entitled to all the powers and charged to perform all the duties conferred by law upon the County Commissioners in the several counties of the State, and by reason thereof "it became and was the duty of the defendants to remove said obstructions so as aforesaid put and erected in the bed of the said water-course at the said highway, but the defendants well knowing the premises, have wholly neglected to remove the said obstructions, and permit the water of the said stream to flow freely from and below, &c. wherefore the plaintiff during all that time, &c."

While the demurrer admits the facts stated in this count, it does not admit the legal conclusion to be drawn from them. Whether it became and was the duty of the defendants to remove the obstructions which had been erected by the Commissioners of Somerset county is a question of law to be determined from the facts alleged, and is not a matter confessed by the demurrer. Nor is it to be taken as admitted, that the law creating them a corporation with the powers and duties conferred upon the commissioners of the several counties imposed upon them this duty.

It is said in the brief of the appellant, if one in possession erect a nuisance, his successor is not liable, unless his conduct amount to a continuance, and if no act of continuance be shown, there must be notice to remove, and neglect or refusal to remove before action. We entirely concur in this statement of the law, and think it is fully sustained by the authorities. Before an action can be maintained against a party who has not erected the nuisance, it must be established that he either failed, after request, to remove it, or has done some act to continue it. If one or the other averment is not contained in the declaration, it is as fatal upon demurrer to the maintenance...