Groh v. South

²⁹⁸ Pattison, J., delivered the opinion of the Court. The appeal in this case is from a judgment recovered by the appellee against the appellant in the Circuit Court for Washington County. The appellee, at the time of the institution of this suit, occupied, and had for years prior thereto occupied, as tenant, a farm bordering on Antietam Creek in said county. On this farm was located a spring; its overflow ran into Antietam Creek.

Upon this spring the plaintiff chiefly depended for his supply of water for farm and domestic purposes, including drinking water for his family. The appellant, at such time, was the owner of a farm bordering upon the said stream below that of the appellee or plaintiff. As charged by the plaintiff, the defendant constructed a dam across said stream from the lands so owned by him to the opposite shore. This dam, as alleged by the plaintiff in his declaration, “caused the water of the Antietam Creek to pond back into and over the aforesaid spring, overflowing the same with impure and unwholesome waters and filling and flooding the same with mud and debris which was carried into said spring by the waters of the Antietam Creek and greatly damaged and destroyed the otherwise pure, wholesome and potable waters of said spring and destroyed the use thereof for domestic purposes, and otherwise greatly damaged the plaintiff,” etc. To the declaration the defendant pleaded the general issue plea.

At the conclusion of the testimony the plaintiff offered one and the defendant offered four prayers. The plaintiff’s prayer was conceded, and so were the first and third prayers of the defendant. The defendant’s second prayer was granted, while his fourth prayer was rejected. The only exception before us is that taken to the rejection of the defendant’s fourth prayer.

By it the Court was asked to instruct the jury “that if they find that the plaintiff has contributed to the alleged injury, then he cannot recover.” ²⁹⁹ In the ease of Lawson v. Price, 45 Md. 123 , where the action was for obstructing the appellee’s mill-race by throwing or placing therein, or by cutting and allowing to fall therein, trees, branches, large stumps, brush, chips, stakes, leaves, etc., the Court there said: “The question, in such case, is not whether the defendant has acted with due care, but whether his acts have occasioned the damage complained of. If the acts complained of were done by the appellant, or by his agents or servants in the course of their employment, they were unlawful invasions of the appellee’s rights of property, and it matters not that they were done without negligence. Hegligence is not the gravamen of the action. Scott v. Bay, 3 Md. 431, 445-6 ; Leame v. Bray, 3 East. 593; Fletcher v. Ryland, L. Rep. 3 H. L. 330; Wilson v. City of New Bedford, 108 Mass. 261 ; Cahill v. Eastman, 18 Minn. 324 ; St. Peter v. Denison, 58 N. Y. 416 .

See also Bellinger v. The N. Y. Central R. Co., 23 N. Y. 42, 47 .” In the case of Bellinger v. The N. Y. Central R. Co., supra, which was an action for obstructing a stream by means of which the plaintiff’s lands were overflowed and damaged, the Court there said: “The maxim aqua currit et dehit currere absolutely prohibits an individual from interfering with a natural flow of water to the prejudice of another riparian owner under any pretenses, and subjects him to damages at the suit of any party injured without regard to any question of negligence or want of care. If one chooses of his own authority to interfere with a water course, even upon his own land, he, as a general rule, does it at his peril as respects other riparian owners above or below.” And our predecessors in discussing the defendant’s third prayer in Lawson v. Price, supra, which sought to exclude the plaintiff’s right to recover upon the ground of contributory negligence of the plaintiff, said: “After the wrong was committed, it was certainly the duty of the appellee (the plaintiff) to avoid the consequences of the wrong as far as he reasonably could. If by labor or a reasonable outlay of money he could have stayed or avoided the consequences of ³⁰⁰ the appellant’s wrong, he should have done so. But in this case, the object of the prayer was to exclude in toto the appellee’s right to recover damages for any injury to which his want of diligence contributed.

It is only to the extent of the contribution of wilful failure or gross neglect, that the party, in a case like the present, should be precluded from recovering. It is a question to be considered in assessing the damages and does not go to the right of the plaintiff to maintain his action and recover against the wrongdoer.” The alleged contributory negligence of the plaintiff conn plained of in this case, is that he, after the dam was constructed by the defendant, removed from the mouth of the spring run a board six inches in width placed there by him, and in so doing removed a barrier to the water flowing from the creek into the spring. Both the plaintiff and his father, the owner of the farm occupied by the