Hitchins Bros. v. Mayor of Frostburg

Alvey, C. J., delivered the opinion of the Court. This action was brought to recover damages alleged to have been suffered, by reason of the backing and overflow of water, mud, &c. upon the property of the plaintiffs, caused, as it is alleged, by a badly constructed and insufficient underground sewer, in the town of Frostburg. It is alleged that, in the grading of two of the streets of the town, the surface water was diverted from its natural ¹⁰⁶ course and flow, and collected into artificial drains or gutters in large volumes, and thereby caused to flow to a point, in Bowery street opposite and near to the property of the plaintiffs, on the north side of that street, where the defendant caused to he constructed a sewer or culvert under and across Bowery street, -by which such water was designed to be carried off and emptied on the south side of said street; hut, by reason of the negligent, unskilful and defective construction and maintenance of such culvert, the same was insufficient, and failed to carry off the water conducted to the mouth thereof, and, consequently, the water and debris, so collected and conducted, were backed up and made to overflow upon the property of the plaintiffs, thereby causing great injury. The case was tried upon the general issue plea of not guilty.

By the charter of the town, full authority is conferred upon the Mayor and Councilmen to open, grade and pave streets, and to construct such gutters and sewers as, in their judgment, the public convenience may require, and to repair the same whenever needed. They are also empowered to remove all nuisances and obstructions from the streets, and they are clothed with power to pass all such ordinances as may he deemed beneficial to the town, and necessary for the safety and protection of person and property of the inhabitants thereof. Acts 1870, ch. 77 ; 1878, ch. 255. The evidence shows that the town of Frostburg is built on the slope of a mountain, and the grades of its streets are, in many places, and in different directions, quite steep.

Charles street has a heavy down grade to the point where it joins or intersects Bowery street, and the latter has a considerable ascent in both directions, east and west, from the point where such streets join at right angles. Artificial gutters have been made on the north side of Bowery street, and on the east side of Charles street, whereby the- surface water, which flows on both streets in large ¹⁰⁷ quantities during heavy rain falls, is collected and made to flow in the artificial gutters to the mouth of the sewer constructed diagonally across Bowery street, at the junction of Bowery and Charles streets. It is shown hy the proof on the part of the plaintiffs, and, indeed, not controverted by the defendant, that this sewer or culvert was not of sufficient capacity, even if it had been otherwise well constructed, to carry off the water frequently flowing to it; hut that, according to the proof offered by the plaintiffs, it was so unskilfully, negligently, and defectively constructed, that the flow of water was obstructed, and, consequently, dammed up, and made to overflow the adjoining premises of the plaintiffs, sometimes to the depth of two feet or more, carrying dirt and debris upon the same, thereby doing serious damage to the property. Proof was also adduced to show that the defendant was, for several years before suit brought, well aware of the defective and insufficient condition of the sewer, and of the injury suffered therefrom by the plaintiffs, but that it had failed to take any steps to remedy the defect.

On the part of the defendant, proof was given to controvert, in several important particulars, the evidence on the part of the plaintiffs. The defendant also offered proof to show that the prior owner of the plaintiffs’ property cut down and lowered the floor of the cellar of the house, and removed the earth between the house and the street, so that when the water was raised a few inches in the gutter on the street it ran into the cellar or basement of the house. This, however, was controverted by testimony for the plaintiffs. Upon the whole evidence, both parties applied to the Court for instructions to the jury.

But of the prayers offered, the one single prayer by the plaintiffs, and all those by the defendant, except the first and fourth, were rejected. It was therefore upon the first and fourth prayers of the defendant, given as instructions, that the case was placed before the jury. The plaintiffs excepted ¹⁰⁸ to the refusal to grant their one prayer, and to the granting of the two prayers on the part of the defendant. And this Court is now called upon to determine whether there was error, in this ruling upon the prayers, committed by the Court below.

Before proceeding to notice particularly the prayers under review, we deem it proper to state the general doctrine of the law upon the subject, as we find it laid down by the most approved authorities. How far the common law, independently of the special provisions of the statute incorporating the defendant, would furnish a remedy against a municipality for an injury such as that complained of here, is a question not necessarily involved in this case. For as we have seen, the statute, with a view to the improvement and benefit of the town, confers large powers upon the Mayor and Councilmen, with respect to streets, drains, sewers, &c., and also power to remove and prevent nuisances. It is out of these powers, and the manner of their exercise, and the duty resulting therefrom, that the liability here insisted upon arises to the plaintiffs, if it can he maintained at all, in respect to the facts of the case, as-we have stated them.

In Cooley on Constitutional Limitations, page 248, it is laid down as the result of the decisions upon the subject, that “ The grant by the State to the municipality of a portion of its sovereign powers, and their acceptance for these beneficial purposes, is regarded as raising an implied promise, on the part of the corporation, to perform the corporate duties ; and this implied contract, made with the sovereign power, enures to the benefit of every individual interested in its performance. In this respect these corporations are looked upon as occupying the same position as private corporations, which, having accepted a valuable franchise, on condition of the performance of certain public duties, are held to contract by the acceptance for the performance of these duties. In the case of public corpo ¹⁰⁹ rations, however, the liability is contingent on the law affording the means of performing the duty, which, in some cases, by reason of restrictions upon the power of taxation, they might not possess. But assuming the corporation to be clothed with sufficient power by the charter to that end, the liability of a city or village, vested with control of its streets, for any neglect to keep them in repair, or for any improper construction, has been determined in many cases.

And a similar liability would exist in other cases where the same reasons would be applicable.” In support of this text, the learned author refers to a number of cases; and the principle stated by him is in accord with the decisions of this Court, in the case of Balto. City vs. Marriott, 9 Md., 160 , and the recent case of Taylor vs. Cumberland, 64 Md., 68 . And on the next succeeding page of the author just cited, he says: “In regard to all those powers which are conferred upon the corporation, not for the benefit of the general public, but of the corporators,—as to construct works to supply a city with water, or gas works, or sewers, and the like,—the corporation is held to a still more strict liability, and is made to respond in damages to the parties injured by the negligent manner in which the work is constructed, or guarded, etc.” But notwithstanding this duty and liability of the municipality, in respect to powers delegated, there is a class of powers defined as discretionary or quasi judicial, which the corporate authorities cannot be compelled to execute. As, for instance, the opening, widening or extension of streets, the adoption of a particular grade, or the adoption of any particular plan for improvement, and the like, unless the terms of the statute are imperative.

But any particular plan that may be adopted must be a reasonable one, and the manner of its execution thence becomes, with respect to the right of the citizen, a mere ministerial duty; and for any negligence or unskilfulness in the execution or construction of the work, whereby injury is inflicted upon private ¹¹⁰ right, the municipality will he held responsible. This is the principle maintained by the great preponderance of authority; and there is nothing in the case of the City of Cumberland vs. Willison, 50 Md., 138 , at all opposed to this principle, as would- seem to be supposed by counsel for the defendant. In that case, the authority delegated to the corporation to grade and improve its streets, was held to have been properly exercised, with no want of reasonable care and skill. It was not attempted to be shown that the injury complained of had been produced by the want of care and skill in the grading and draining the streets; and there was no question of negligence or want of skill raised in the case.

But in the recent case of Kranz vs. Baltimore City, 64 Md., 491 , where the action was brought for injury sustained by a property holder, caused by obstructions in a sewer, and the overflow therefrom, upon the premises of the plaintiff, of water, mud, filth, &c., the result of the bad condition and want of repair of the sewer, this Oourt held, that the city was liable, as well for the consequences of the negligent failure to keep the sewer in repair,- as for negligence and unskilfulness in actually making, the repairs. And the general proposition was maintained, that where a municipal corporation undertakes, in the discharge of its duties, to construct or repair such a work as a sewer or. culvert, it is responsible for damage caused by the negligent, careless or unskilful manner of performing the work; and 2d vol. of Dillon on Municipal Corporations, sec. 1049, is cited with approval. And in that same work, in sec. 1051, where the author sums up and states the result of the authorities upon the subject of municipal liability for injuries caused by surface water, the following, among other propositions, is formulated: “ There is a municipal liability where the property of private persons is flooded, either directly or by water being set bach, when this is the result of the negligent execution of the .plan adopted for the'construction of gutters, drains, ¹¹¹ culverts, or sewers, or of the negligent failure to keep the same in repair and free from obstruction, and this whether the lots are below the grade of the streets or not.” The cases says Judge Dillon, support this proposition with great unanimity. Of the many cases cited by the author, we need only refer to those of The Rochester White Lead Co. vs. Rochester, 3 N. Y., 463 ; Barton vs. City of Syracuse, 36 N. Y., 54 ; Rowe vs. Portsmouth, 56 N. H., 291, and Noonan vs. City of Albany, 19 N. Y., 410 .

Now, with these general principles in view, we will turn to the prayers which form the subject of the first exception by the plaintiffs. And, with respect to the one prayer offered by the plaintiffs, we think the Court below was right in rejecting it. By that prayer the Court was asked to instruct the jury, that if they should find that the defendant built the culvert described by the witnesses, and that the same was intended to receive and carry off the surface water flowing through the gutters, along Bowery and Charles streets, in times of rain ; and further find that such sewer or culvert was constructed in such careless, unskilful and improper manner, as, instead of carrying off such water, to cause the same to accumulate in large quantities at the upper end thereof, and from thence to flow hack upon the property of the plaintiffs, and injure and damage the same, then the plaintiffs were entitled to recover. This prayer would seem, as a general proposition, to he quite correct, as far as it goes; but in view of the evidence in the case, and to avoid