Merryman v. Mayor of Baltimore

Pattison, J., delivered tbe opinion of tbe Court. Tbe appeal in this case is from a judgment for defendant’s costs in a suit brought by tbe appellant, Marion H. Merry-man, against tbe Mayor and City Council of Baltimore. Tbe declaration upon wbicb tbe suit was brought alleged tbat, prior to tbe fifth day of November, 1923, tbe defendant, ⁴²¹ the Mayor and City Council of Baltimore, had acquired, by purchase, all the property and assets of the Baltimore County Water Company, a public service corporation, which prior to such time had been engaged in supplying the residents of Towson and other vicinities of Baltimore County with water. It thereupon became the duty of said defendant, as successor to said water company, upon formal application and payment of certain prescribed connection charges, to furnish water to all owners of property in the areas through which the water mains of said water company had theretofore been laid.

That the plaintiff was, prior to said fifth day of November, 1923, and has ever since been, the owner in fee simple of a lot of ground in Towson on the south side of Susquehanna Avenue, about one hundred feet east of Washington Avenue, ixpon which he, in the fall of 1923, erected a large and substantial frame building intended to be used for residential and business purposes. That on the said 5th day of November, 1923, after the plaintiff had practically completed the erection of said building, he made formal application to the defendant corporation “to have an adequate supply of water delivered to his said premises.” That some time prior to said date, “water mains had been laid in the beds of the avenues immediately adjacent to the plaintiff’s said property by the aforementioned water company,” which had been taken over by the defendant corporation, and were then and are now in existence and used by the defendant corporation as a part of its said water system. That the plaintiff, at the time of making his application for a supply of water, was required by the defendant to pay the sum of sixteen dollars to cover the installation charges, which were paid to Charles E. Bichy, collector of water rents and licenses for the defendant, and his receipt taken therefor. That upon the plaintiff’s formal application for water services and the payment of the installation charges which were exacted of him, it became the duty of the defendant corporation to “provide and lay the pipes, meter and fixtures, etc., necessary to * * * deliver an adequate supply of water to said ⁴²² premises within a reasonable time thereafter.” That after making the application and paying the required installation charges, he, on several occasions thereafter, notified the defendant corporation that the water had not been delivered to his premises, and received promises that the matter would be attended to, but the defendant failed to deliver any water thereat, until the 13th day of July, 1925, “in consequence of which he (the plaintiff) was during all of said period, prevented from renting or making any other disposition of his said building, and the same was rendered of no use or value to him whatsoever, to his great loss and injury, due entirely to the failure and neglect of the defendant corporation to perform and complete its aforesaid undertaking.” To this declaration the defendant pleaded never promised, and never indebted as alleged, and issue was joined thereon.

ISTo question was raised as to the pleading. At the trial of the case forty exceptions were taken. At the conclusion of the whole testimony a prayer was offered by the defendant asking that the case be withdrawn from the consideration of the jury, because of a want of evidence legally sufficient to entitle the plaintiff to recover. This prayer was granted and an exception was taken to the action of the court thereon.

The other exceptions were to the rulings of the court upon the evidence. The facts, as disclosed by the record, are substantially these: Marion H. Merryman, the appellant, a resident of Towson since 1903, owned his home on the southeast comer of Washington and Susquehanna Avenues. He also owned a lot adjoining on the east, fronting on Susquehanna Avenue. In 1903 there was a two-inch main laid in Washington Avenue by the Baltimore County Water Company, but paid for by the appellant and one Morton.

It, however, became the property of said company and passed to the appellee in its purchase of the property and assets of that company. The home of Merryman, on the southeast corner of Washington and Susquehanna Avenues, was supplied with water ⁴²³ from that main by means of a three-quarter inch pipe, laid in Susquehanna Avenue and connected with the Washington Avenue main at the corner of said avenues. Immediately east of appellant’s home is the lot owned by him upon which the building in this case was erected, known as ISTo. 25 Susquehanna Avenue. Next to it, on the east, is a printing plant, and beyond and adjoining the printing plant is a railroad depot.

Both the printing plant and depot were, and had been for years, supplied with water by means of an inch pipe connected with the two-inch main in Washington Avenue, and running eastwardly therefrom in Susquehanna Avenue to and beyond the printing plant to a point opposite the railroad depot, where it stopped. The two-inch main in Washington Avenue, the three-quarter inch pipe by which water was supplied to the home of the appellant, and the one inch pipe by which water was furnished to^ the printing plant and railroad depot, were all in existence at the time of the application made by the appellant for a supply of water for the newly erected building. On the 5th day of November, 1923, when the building was about completed, the appellant made formal application to the appellee for water for said building and premises and paid to the appellee sixteen dollars “for introduction of water from city main to supply premises 25 Susquehanna Avenue, Towson,” as stated in the receipt given therefor. The appellant at the same time signed an application, in which it is said that the “water board of the City of Baltimore will make connection with the main pipe for the supply of the premises 25 Susquehanna Avenue of which Marion H. Merryman is owner”; and that “the undersigned owner of said premises hereby agrees to pay the water board for making the connection and all charges for the use of the water on the above named premises, as regulated by law, until the said connection is severed by duly notifying the collector to stop the supply,” etc. As stated by the appellant, about two weeks after making his application, nothing having been done, so far as he could see, towards supplying the premises ⁴²⁴ with water, he went to the city hall “to hurry them up” in regard to same.

He was there told that the water would be installed in about two weeks. Three or four days thereafter he saw Mr. Malkus, who had been the field man of the Baltimore County Water Company and was at that time working for the water department of Baltimore City, putting in meters; it was he who, in 1903, superintended the laying of the two-inch main in Washington Avenue, for the Baltimore County Water Company, from which fact he was familiar with its location in the avenue. He also superintended the work of supplying said premises with water when it was finally done in 1925. On the occasion mentioned, the appellant asked Mr. Malkus to make every effort he could to have the premises supplied with water, telling him that he could not use or rent the premises until it was done.

After his conversation with Malkus, the appellant, in January, 1924, went to Florida and did not return to Maryland until April or May following, when he made complaint to the man who came to his home to read the meter, that he had not been supplied with water for the premises Ho. 25 Susquehanna Avenue. Later, still not having water, he, on August 18th, wrote Charles E. Bichy, collector of water rents, calling his attention to such fact, and concluded his letter by making a formal demand for the water previously applied for, and telling him of the loss suffered by him, the appellant, because of his inability to rent the property without water, and that he would hold the city liable for such loss. To this letter he received the following reply: “August 21, 1924. “Mr. H. H. Merryman, “Towson, Md. “Dear Sir: I have your communication of the 18th instant in reference to the delay in installation of water supply to your property on Susquehanna Avenue, Towson. “This is a matter that does not come under my supervision, as the work is performed by the water engineer’s department. I am, therefore, referring your ⁴²⁵ ecnmmmioation to Mr. J. S. Strohmeyer, distribution division, Wolfe and Oliver Sts., for investigation and report to you.

Yours very truly, “Chas. E. Bichy, Collector.” The appellant stated that the above was the only letter he received from the appellee or its agents in relation to the water supply asked for by him. He was asked if he had not received letters dated December 14th, 1923, and March 12th, 1924, from Erank J. Hablick, bureau of drafting, water department, Baltimore City, and he said he had not received either of them. He testified that, after receiving Mr. Bichy’s letter of August 21st, 1924, he went to the office of Mr. Strohmeyer, and had a talk with him, and while there Strohmeyer called up the city solicitor over the ’phone, with whom he talked.

He could not hear what the city solicitor said to him, but could hear what Strohmeyer said, and after talking some time, Strohmeyer suggested “had not he better get into an agreement with Mr. Merryman.” At the close of his conversation over the ’phone, he said to the appellant, “I will have to draw up a paper here to have you sign off that you are not coming back upon the city for any damages,” and “I said to him, T am surprised at your asking-such a question.’ He said very little more, and so I got up and went on out.” It was not until July, 1925, that water was supplied by the city to the premises Ho. 25 Susquehanna Avenue, at which time the city laid a six-inch main on Susquehanna Avenue, with which the pipe that supplied the water to the premises of the appellant was connected. Evidence was also offered by the appellant showing the rental value of the house and premises and the loss sustained by him by his inability to rent the same on account of the failure of the city to supply the premises with water. After it was supplied with water, he. on the 28th day of January, 1926, rented the property for one year commencing the first ⁴²⁶ day of February, 1926, at and for the sum of sixty-five dollars per month. It is contended by the appellee that the payment of the sixteen dollars by the appellant to the appellee, and his application made at the same time for a supply of water to the premises owned by him, was an application for “making connection with the main pipe” in.Susquehanna Avenue, the street adjacent to said premises, provided there was an available main in said avenue.

As construed by the appellee, no pipe less than two inches is a main,