Camden Sewer Co. v. Mayor of Salisbury

Offutt, J., delivered the opinion of the Court. On June 7th, ,1902, the Mayor and Council of Salisbury, Maryland, by an ordinance of that date granted to William J. Staton and others, associated under the name of Camden Sewer Company, a right or franchise to lay sewer mains in Camden Avenue, and certain named lateral streets intersecting Camden Avenue, in Salisbury. Section 4 of that ordinance provided, in part, that: “In consideration of the permission hereby and herein granted, be it further enacted, and it is hereby understood and agreed, that the Mayor and Council shall have the privilege of draining surface water on Camden Avenue into said main sewer from the corners formed by any intersecting street, free of charge, provided, and so long as, the admission of such surface water shall not, and does not, interfere with the primary purpose for which said sewer is laid by said Company, or prevent its efficiency in that regard, or prove detrimental to its permanency; and if the said Company and the said Mayor and Council should at any time disagree on any matter relating to the said admission of said surface water into the said sewer, then, the matter shall be submitted to ³⁵⁴ three disinterested persons, of whom the Company shall choose one, the Mayor and Council another, and the two persons so chosen shall select a third (who preferably shall be an expert on sewerage draining) ; and the decision of the three shall be final.” One of the lateral streets intersecting Camden Avenue in Salisbury is Newton Street. By chapter 12 of the Acts of 1904, Staton and others were made a body corporate under the name of Camden Sewer Company, which was empowered to carry out the purposes of that ordinance, and although so far as the record shows there was no grant from the unincorporated association or its members to the corporation, the corporation nevertheless constructed and from that time on operated the sewerage system, and apparently exercised the rights and powers granted by the ordinance to the unincorporated association.

Camden Avenue runs apparently north and south, Newton Street east and west. A sewer, running east from Camden Avenue, 1,450 feet on Newton Street, was constructed and connected with the main sewer on Camden Avenue. To facilitate the collection of storm and surface water on Newton Street; certain catch basins were constructed along that street, apparently at the direction of some official of the Town of Salisbury, and connected with appellant’s sewer pipe on Newton Street. The effect of that arrangement was to gather the surface water flowing along Newton Street and discharge it into that part of the sewer which was laid along Newton Street before it joined the main sewer at Camden Avenue.

In 1920 a part of the Newton Street sewer was found to be clogged and choked with debris collected by the surface water flowing along that street and discharged into the sewer through the catch basins. The Camden Sewer Company demanded that the Mayor and Council of Salisbury reimburse it for the expense of removing the obstruction, and upon its refusal brought an action against it to recover the cost of repairing the damage caused by the appellant’s acts in gathering and discharging surface and ³⁵⁵ storm waters into its sewer on Newton Street, first on the theory that the town had no right to discharge such water into the sewer on Newton Street at all; and, second, that if it had any such right it failed to exercise reasonable care in exercising it, and that the damage to the sewer was the direct consequence of such negligence. It recovered a judgment in that case, which was affirmed on appeal to this court. (Salisbury v. Camden Sewer Co., 141 Md. 254 , 118 A. 662 ), and in that case, in dealing with the identical ordinance under consideration here, it was held that, under section 4 of the ordinance, while the town had the right to discharge storm and surface water into the sewer on Camden Avenue, it had no right to discharge such waters into the sewer on Newton Street before it reached Camden Avenue, and that it was liable either on the theory of negligence in the construction and operation of the catch basins, or on the theory that it had unlawfully invaded the property of the Camden Sewer Company.

Following that suit, on October 27th, 1924, the Camden Sewer Company brought this action against the Mayor and Council of Salisbury to recover the expense of removing obstructions which were said to have been carried into the Newton Street main by surface and storm water discharged into it through the same or similar catch basins,