Oursler v. Baltimore & Ohio Railroad

Irving, J., delivered the opinion of the Court. The main question, for decision in this case, is the true-construction of the deed from William Black to the appellee, dated February Ith, 1848. By that deed, in consideration of the sum of eight hundred and fifty dollars, the-grantor conveyed to the appellee two parcels of land containing in the aggregate, three-quarters of an acre of land and one rod. Together with the land was acquired the right, on the part of the appellee, to divert the waters of Patapsco river from its natural channel into another channel-way as might be required in the alteration of the location of the grantee’s road.

The clause in the deed giving-rise to this controversy is as follows: “it being hereby expressly agreed and understood between the parties hereto,, that the said parties of the second part shall have the right, which is hereby given to them, along with the land aforesaid, to divert from their present channel the waters of the Western Falls of the Patapsco river, as may be required in the alteration of the location of the said railroad as at present constructed ; with the understanding, that, in constructing a culvert in the said road, on its new location, it shall be placed so as to drain, as far as practicable, the former bed of the said falls after they shall have been diverted from their present channel; it being further-understood, that whenever the said party of the second part shall cease to use the bed or track of the -old road,. ³⁶¹ now running on the land of the said William Black, the same shall revert to and become the property of the said William Black, his heirs and assigns forever.” It appears from the record, that, at the point where the land conveyed by the deed is located, the Patapsco river ran in a bend almost semi-circular, and the appellee’s railroad followed the winding course of the river on its south side over the land of the grantor of the deed. Desiring to straighten the road the appellee bought of William Black the two points of land over which the road, if straightened, would have to pass. To save bridging, the appellee contracted also for the right to divert the river from its accustomed channel (as far as might be required for the purposes of the projected alteration of the road) over the land of William Black, into a new channel-way to the north of the new location as proposed. After the purchase of the land and the right to divert the river, the road was straightened, and the river was turned into an artificial channel on the north side of the newly constructed road-way.

This was done by building an embankment from the bed at the western point of intersection with the river, as it then ran, thereby effecting an almost total diversion of the river into the newly made channel-way for it. It was a total diversion, except in so far as some water would percolate through the stone and embankment. Upon the embankment the rails for the road were laid. At the other point of crossing the old river bed, a culvert, about five feet wide and six feet high, was constructed for the purpose of draining the old bed of the river through the plaintiff's land.

This condition of the road continued until the year 1868, when a flood carried away both the bank and the culvert, and the river resumed its ancient course. In rebuilding the road, soon after the flood, the appellee, instead of the solid embankment first adopted at the point where the river was diverted, only built it solid about three feet high, and thereon ³⁶² •erected an open trestle, so that whenever the river rose more than three feet above its usual volume, it would flow in upon its old bed, through the appellant’s property. It was also in evidence, that the river frequently did overflow in heavy rains. In lieu of the culvert which the flood swept away, the appellee erected a trestle resting upon sills, in some places, five feet apart, and the sills resting upon heavy piles driven in the old bed of the river.

This trestle was one hundred and twelve feet long •at the bottom, and one hundred and eighty-eight feet long at the top'. The appellant, the owner, by mesne conveyances, from William Black, appellee’s grantor, conceiving herself injured by the new method of diverting the stream and construction of the road, by Avhich her land was subjected to'occasional overflow, and the drainage of the old river bed was, as she thought, less efficient than by the culvert, in •September, 1880, sued the appellee on account thereof. That suit resulted in a verdict in her favor for forty dollars ■damages, on account of injury sustained, in the opinion of the jury, during the immediately preceding three years. Upon that verdict judgment was entered and there was no appeal.

In the old bed of the river, and on the apj>ellant’s land, were some pools of water which the trestle was supposed not to relieve as effectively as the culvert had done. •Shortly after the suit, ended, the appellee caused a ditch, five feet wide and of sufficient depth to drain the pool nearest the trestle exit, (as appellee insisted,) from that pool, out through the trestle opening, towards the river as it now flows. Regarding this ditch as insufficient to accomplish the drainage provided for in the contract, and not in accordance with the contract, the appellant again sued the appellee, and the rulings of the Court in that ■suit form the subject of this appeal and our consideration. In this suit the appellant offered evidence tending to .show that since the construction of the trestle, the river at ³⁶³ that point has become filled up with soil, &c., and the waters which ought there to flow off have been obstructed and made to back upon, and render marshy, the plaintiff’s land, and cause standing pools of water, which make it unhealthy. On the other hand the appellee offered evidence tending to show that prior to the year 1848, and prior to any alteration in the line of the road, the appellant’s land was ■subject to the frequent overflow of the river from its north bank, and that the land adjoining that bank was marshy and grown up in weeds and bushes, and that after the alteration, water percolated through the rocks and embankment, and that from 1848 to 1868 the old bed of the river had much more water in it than it has had since the construction of the trestle opening, and that since the cutting of the ditch the old bed is drained better than ever before.

It was also shown, that behind the appellant’s land is a ridge of hills from which, in heavy rains, streams of water are poured down on the appellant’s lands, which, sloping as they do from the road towards the old bed of the river, cause pools to be formed, which no culvert could be constructed to take off. The appellee also offered evidence that no part of the appellant’s land at that point had ever been cultivated except about one-quarter of an acre, which at the time of the plaintiff’s purchase, was cultivated and had been once since seeded by plaintiff in rye. As a part of the appellant’s evidence at the trial the record of the former suit was introduced, together with the instructions of the Court given to the jury on that trial. As those instructions construed the clause in the deed we are again to consider, and to the extent that the same questions are presented, form the law of this case, being' acquiesced in and unappealed from, we incorporate them herein.

They are as follows: “'1st. That under the deed of the 7th of February, 1848, offered in evidence by the plaintiff, the defendants were not bound to divert ³⁶⁴ wholly and entirely all the waters of the river in case they exercised the right of diversion granted by that deed, and hence the partial diversion effected by the means testified to by the witnesses and made since the flood of 1868, was no violation of their duty on the part of the defendants. “ 2nd. But it was the duty of the defendants in making either a partial or total diversion of the said waters, to construct such an outlet so located under, their road, thus newly constructed, as would drain, as far as practicable, the former bed of the river, including the affluents spoken of by the witnesses, which flowed into said old bed above the location of said outlet. “ 3rd. If the jury find, from the evidence, that the outlet by means of the trestle, spoken of and described by the witnesses, does not drain the former bed of the river, including the affluents mentioned in the second instruction, as effectually and practically as an outlet by means of an open stone culvert, or other similar outlet would do, and that the flow of water and drainage of said old bed has been impeded and obstructed by said trestle-work, and the plaintiff has suffered any damage to her property by reason thereof, then for such damages as the jury may find, from the evidence, she has so sustained within three years before the institution of this suit, the plaintiff is entitled to recover.” On the application of the plaintiff, this additional instruction was given on that trial: “ The Court instructs the jury that, by the acceptance of the deed of February j'th, 1848, and the diversion of the waters of the Patapsco from their former bed, and the change in the location of the defendant’s road, which are admitted facts in this cause, it became, and was thereafter, the continuing duty of the defendant to provide a sufficient culvert, or other equivalent structure, so arranged where the road, in its altered location, passes over the former bed of the river, as at all times to drain, as far as practicable, the waters ³⁶⁵ which might and would flow along said former bed; and if the jury find that the trestle-work which the defendant has erected at said former bed in the present location of the road, has not drained said waters as far as was practicable, but that by some other structure, or different arrangement of the parts of said structure, said waters might have been more effectually and thoroughly drained than they have in fact been, and that by reason of the defendant’s continued use of said trestle-work the flow and drainage of said waters along and over said bed, and within the lands held and occupied by the plaintiff, under the conveyances which have been offered in evidence (if the jury shall find said holding and occupancy under the said conveyances, and the said conveyances,) has not been as complete as it could and might have been made by a different structure, or by some different arrangement of its trestling, within three years next before this suit brought, then the defendant has failed to fulfil the duties incumbent upon it, and the plaintiff is entitled to recover as stated in the third instruction.” At the trial of the second suit, which we are now considering, the Circuit Court again instructed the jury in the language of the first and second instructions already quoted as given on the former trial, and granted other instructions, at the instance of the defendant, adapted to the facts of the case as again presented, and in keeping, as the Court thought, with the construction of the deed adopted at the former trial.

In the granting of all the defendant’s prayers (except the fourth, which was rejected,) and the rejection of all the plaintiff’s prayers except; the fifth (which was granted,) exception was taken by the plaintiff, who has appealed, after verdict and judgment in her favor for one cent damages and costs. We gather from the instructions granted in the first case, aud also in this case, that the Circuit Court understood and construed the deed as conferring on the ap ³⁶⁶ pellee, in addition to the land conveyed, the absolute right to divert the waters of the Patapsco from their accustomed channel into an artificial one, so far, and only so far, as might he necessary for the purposes of the appellee in making the alteration contemplated, in their road. The appellee might abandon the project altogether if it was deemed advisable. If the plan was carried out the appellee was not bound to make a total diversion of the waters, but might make a partial diversion only if that better suited the necessities of the new construction.

A consideration had been paid for the right to be exercised as best promoted the object the purchaser had in view; and it was a continuing right. Hence, when the flood of 1868, by sweeping the whole newly constructed road and culvert away, demonstrated the impracticability of maintaining the road securely by the method of construction first adopted, it was perfectly competent for the appellee, under the right acquired by the deed, to make such change in rebuilding the road as would protect it from similar consequences if another flood should come. The conformation of the surrounding country rendered the river liable to overflow, and the contract did not deprive the grantee of the deed from doing what was deemed necessary to the safety of its