Mayor & Councilmen of Frostburg v. Dufty

Robinson, J., delivered the opinion of the Court. The plaintiff’s house is on the east side of Bowery street, opposite the “Hitchins” property, and was injured hy being flooded with surface water and drainage, caused, it is alleged, by the negligent construction of the same sewer across Bowery street, wEich was the .subject matter of controversy in the Hitchins case. In addition to the proof offered in that case in regard to the grading of Bowery street, and the negligent construction of the sewer, the plaintiff proved that the defendant diverted the natural flow of his surface water from Hill and Loo streets, and conveyed it by gutters to the east' side of Bowery street, and thence to the sewer opposite the plaintiff’s house, — that the opening’made into the sewer for the water coming down on the east side of the street was negligently made, in consequence of which the surface water and drainage dammed up, and flooded the plaintiff’s house. So in this case it appears that the surface water and drainage was brought to the sewer by gutters on both the west and east sides of Bowery street.

The defendant jrroved that the plaintiff’s house was built on ground made by filling up a dry run, which was the natural drain or outlet for surface water from the surrounding hills during heavy rains, and that the injury complained of was caused by said water flowing naturally to and against the plaintiff’s house. In granting the plaintiff’s first and second prayers, the question whether the injury was caused by the ⁵⁴ negligent and unskillful construction of tlie sewer, was fairly submitted to the jury. The facts set forth in these prayers and upon which the plaintiff’s right to recover is based, are in themselves a denial of the facts relied on by the defendant, and it was unnecessary therefore to negative in terms the proof offered by the defendant. Quite a number of prayers were offered by the defendant, several of which it seems to us have no bearing whatever upon the issues before the jury.

As to the first and second, it is sufficient to say, that the plaintiff’s right to recover did not depend upon the negligence of the defendant in grading its streets, or in the construction of its gutters, nor upon the fact that the surface water was brought in increased quantities to the mouth of the sewer. The real question in issue, was the negligent construction of the sewer, in consequence of which the plaintiff’s house was injured. The modification by the Court of the defendant’s third prayer was a proper modification. The plaintiff had the right in the exercise of his judgment, to build his house on ground made by filling up a dry run, and the fact that he may have suffered some injury by thus obstructing the natural flow of the surface water from the adjoining hills, is no reason, as we have said in the Hitchins case, why he should not recover damages for a wholly separate and independent injury resulting from the defendant’s negligence.

Nor is there any objection to the modification of the fourth prayer. The defendant was liable not