Ortwine v. Mayor of Baltimore

Tuck, J., delivered the opinion of this court. The appellant sued the appellees to recover damages for injury done to his property, “by the wrongful and illegal acts of said city and its agents in so grading Pennsylvania Avenue, a public highway, in said city, and in not providing proper and sufficient sewers to carry off the natural flow of water down said avenue,” and, as alleged in the second countin the declaration, he complains “that he was the owner of the lot in question before and at the time that that part of the Pennsylvania Avenue was graded and paved by order of the city authorities; that at the time of such grading the water was carried off without injury to his property, but that by an.illegal and improper grade of the avenue, a much larger body of water is forced into the avenue, and flows over and upon his land,” for which, also, he claims damages. We have made allusion to the pleadings, because they are brought to our notice by the plaintiff’s prayer, which bases jiis right to recover on the jury finding certain facts in connection with the grading and paving of Hoffman and Walsh streets and the avenue, as the cause of damage to his property, which facts, it is averred, entitle him to recover, “under the issue as made up by the pleadings in the cause.” The declaration goes for damage by the wrongful and improper grading of ³⁹⁵ the avenue, and makes no mention of the other streets named in the prayer. It is plain, therefore, that, conceding his right to recover for the -acts of the city’s agents in grading the avenue, under these pleadings he could not claim compensation for any loss or damage by reason of the grading and paving of Hoffman and Walsh streets.

This prayer was therefore properly refused. The defendant offered five prayers — the first of which was granted by consent, being the instruction given by Chief Justice Taney, in the case of Hughes vs. The City, in 1855; the second, third and fourth were refused, and the fifth granted, from which last the plaintiff appealed. The plaintiff’s counsel admits that he has not succeeded to any cause of action of his predecessor in the title for damage done to the lot by the