Mayor of Frostburg v. Hitchins

Robinson, J., delivered the opinion of the Court. The main' questions in this case are fully covered by the decision' in the former appeal between the same parties, 68 Md., 100 . The plaintiffs’ case is simply this: They are the owners of'a house in Erostburg, at the corner of Bowery and Charles streets; and the defendant corporation in grading Bowery street, diverted 'the natural flow of the surface water, and conveyed it by artificial gutters to a culvert or underground seioer, built across Bowery street, opposite the plaintiffs’ house, and in consequence of the negligent construction of the sewer, and neglect in keeping it-in proper repair, the surface water and drainage, instead of passing through it, dammed up at its mouth, and flooded the plaintiffs’ premises. Of all this, the defendant had notice, but- took nó steps to remedy such, defects.

As matter of defence, the defendant proved, that the sewer was properly constructed, and sufficient to carry off the surface water and drainage, except in extraordinary freshets, and that the injury complained of, was caused by the acts of the plaintiffs themselves, in deepening the cellar of the house, for the purpose of converting it into a basement room, and by removing the earth between the front basement wall and the street, in consequence of which the water flowed from the gutter along the street into the basement room of the house. The defendant further proved, that the ground behind the plaintiffs’ house was wet andspringy, and that water during wet seasons percolated through ⁶⁶ the back wall into the basement, thus contributing to the injury complained of. In the former appeal, we said that if the defendant in grading Bowery street diverted the natural flow of the surface water, and conveyed it to the sewer in question, and that by reason of the negligent and unskillful construction of the sewer, the water dammed up at its mouth and flooded the plaintiffs’ poremises, and the defendant had notice of the defective construction of the sewer hut neglected to remedy the same, the plaintiffs were entitled to recover. And so the Court in granting the plaintiffs’ prayer, instructed'the jury.

On the other hand, if the sewer was skillfully constructed and in proper repair, and the plaintiffs brought the mischief on themselves by deepening the cellar, and by the removal of the earth between the front wall and the street, the defendant was not liable. The plaintiffs had the right of course to deepen the cellar of the house, and in so doing did not in any manner relieve the defendant of theresponsibilityof exercising reasonable care in the construction of the sewer. And there can he no objection therefore to the Court’s modification of the defendant’s first prayer. But it is argued, that if the defendant did not divert or obstruct the natural flow of the surface water, the action will not lie, even though the sewer was negligently and unskillfully constructed.

To this we cannot agree. The power under its charter to grade streets and build culverts and sewers, is a discretionary power, to be exercised by the city authorities whenever in their judgment the public good required .it. For the non-exercise of such a power no action it is true will lie, but if they undertake to build a culvert or sewer for the purpose of carrying off the surface water and drainage, they are bound to exercise reasonable care in the execution of the work. And if by reason of the ⁶⁷ negligent