Harms v. Kuchta

⁶¹¹ IIrjxjek, J., delivered the opinion of the Court. The issue in this ease was joined upon allegations and denial, in the pleadings, that the defendants erected a shed extending against and inclined towards the wall of the plaintiffs’ building and that it was damaged by the resulting drainage. The plaintiffs recovered a judgment on the verdict of a jury, and the defendants have appealed. There were four exceptions reserved at the trial, but the only one urged in the appellants’ brief relates to the refusal of the court below to withdraw the case from the jury.

It is argued that in two respects the evidence is legally insufficient to entitle the plaintiffs to recover. There is said to be no proof that there was in fact any drainage from the defendants’ shed against the plaintiffs’ wall. It is further asserted that, assuming the alleged conditions to have existed, the defendants, having acquired, since the erection of the shed, their title to the property on which it is located, could not he liable for the nuisance complained of unless they continued it by their own action or failed to abate it after notice, and they contend that there is no proof of any conduct on their part which could properly he regarded as a continuance of the nuisance, and that no evidence has been offered as to any notice having been given them for its abatement. There is evidence in the record to the effect that the defendants themselves built the shed in question in 1914, and the machinery of one of them was stored under it at that time, the property on which it was constructed being then owned by their mother, who conveyed it to them the following year.

The plaintiffs purchased their adjacent property some months before the erection of the shed, and there is testimony that the wall towards which it inclined was previously in good condition, but that afterwards the wall became damp, some crevices developed in it, and the plaster fell from it in the lower rooms. It was testified also that one of the plaintiffs, protested to one of the defendants against the erection of the shed before its completion. There is a ⁶¹² conflict in the evidence as to nearly all of the salient facts of the case, but the jury accepted the testimony of the plaintiffs and their witnesses, and the verdict was rendered accordingly. The jury could readily find from the evidence adduced by the plaintiffs that their wall was damaged by rain-water flowing against it from the defendants’ shed.

It is indisputable that such a condition would constitute an actionable nuisance. 20 R. C. L. 434 and oases there cited. The rule as to notice, upon which the defendants rely, and as quoted by their counsel from the opinion in Walter v. County Commissioners of Wicomico County, 35 Md. 390 , is that “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