Toy v. Atlantic Gulf & Pacific Co.

Parke, J., delivered the opinion of the Court. The effect of the pleadings in this case made it an action sounding in negligence whereby the defendant was chargeable with the deposit of great quantities of earth in navigable water, so that a pond for carp on the land of the plaintiffs, and the navigation of an approach to the plaintiffs’ premises, were averred to be destroyed, so that the value of the plaintiffs’ land was greatly diminished. At -the close of the testimony on the part of the plaintiffs, the -defendant offered no evidence, but submitted a prayer to take the case from the jury on the ground of the legal insufficiency of the testimony to entitle the plaintiffs to recover. The court granted this prayer; and, pursuant to its instruction, the jury returned a verdict for the defendant.

It is from the judgment on this verdict that the plaintiffs have appealed. The principal error assigned is the ruling on this prayer. The contention is that the Court erred in declining to apply either the doctrine of res ipsa loquitur, or the principle of liability without fault, in support of the plaintiffs’ testimony and right of action. In the view here taken of the case, it becomes unnecessary to discuss the relatively unimportant exceptions to rulings on the testimony.

The plaintiffs are the owners of a tract of land on the west side of Back Creek. The property was bought by them some years ago. A ravine led down to the shore of Back Creek, whose tidal water spread over the bottom- of this ravine. For the purpose of providing carp for the market, a dam was made by building a breast across the ravine and scooping out to a greater depth the bottom, .so that the tide water of Back Creek would naturally fill the dam half of its depth, and the flow of water from ²⁰¹ springs at the head of the dam would raise the impounded water to the level of the breast.

In this pond, the carp were kept until they had grown to be of saleable size, when they were hauled away over a roadway from the land to a public thoroughfare. The tide water of Back Creek was let in and out of the pond by a weir constructed in the breast of the dam; and from the point of this weir Back Creek was navigable at high or low tide in small power or row boats with a maximum draught of about two and one-half feet. The chief use of the waterway to the plaintiffs was in the transportation by boat of carp to the premises, and as an outlet and inlet to the deeper waters of the river and Chesapeake Bay. The tides would frequently rise above the top of the breast and overflow the pond.

The testimony disclosed that the land of the plaintiffs embraced four contiguous parcels, and three of these were separately acquired and held by the husband in severalty, and the fourth was likewise an independent purchase, but it was conveyed to the husband and wife as tenants by the entireties, and is so held by them. The pond for carp is built upon the first parcel bought and the title for this land is in the husband in severalty. It follows that the alleged wrongs relate wholly to the husband’s property, in which the wife had her marital interests. The injury inflicted is the result of public work of the Eederal Government in connection with the navigable waters of the United States known as the Chesapeake and Delaware Canal, which is an inland inter-state sea level navigable waterway extending from a point on the Delaware River westward about fourteen miles to Chesapeake City, Maryland, on Back Creek and thence down Back Creek about five miles to Elk River, and thence down Elk River to the Chesapeake Bay.

See Perrine v. Chesapeake & Delaware Canal Co., 9 How. 172 , 13 L. Ed. 92 . In order to maintain the required depth of the canal frequent and extensive dredging is necessary. The method used was to dredge the material from the canal way by hydraulic machines, and to ²⁰² remove the material by its flow through a movable pipe line, at whose outlet the material, in a mixture of silt, earth, and water, would be disposed of by deposit in a fluid state upon governmentally supplied or approved places. The effluent would spread out, and the water would drain away, and escape through sluices and channels provided, and the residue of mud would remain to form fast land.

The Federal Government had provided along the shore of Back Creek and across from plaintiffs’ land a large disposal area for this purpose. As a result of repeated dredging of the canal and successive deposits of material, the fast land had been raised high above the water level along the west shore of Back Creek, so that the Federal Government had constructed an embankment to confine the excavated material. The height of this embankment at the shore line was thirty-five feet above mean low tide. The surface of the fill over the area for the disposal of the dredged material was uneven, but opposite the plaintiffs’ property it was over seven or eight feet below the top of the embankment when the defendant began its dredging operations on October 7th, 1935.

At that time there were two other dredging companies at work on the canal, but the formation of heavy ice so interfered with their operations that by the middle of December both had quit. The defendant, # however, continued. Before the defendant began to dredge it made an inspection of the embankment which the Federal Government had built. The embankment was found to be in excellent condition and twice the structural strength that would be built for the fill to be made.

The existing fill of fast earth had been made by former deposits of material which had been excavated from the canal under government direction and control, and there was nothing to indicate that the embankment was insecure or that its construction was defective in design or material. At the toe of the embankment, a concrete highway had been constructed by the State Roads Commission of Maryland. It had been there for four or five years, and was in a good ²⁰³ state of repair. The engineers of the government in charge of the improvement directed the defendant to deposit the material in that section of the provided area which was opposite the land of the plaintiffs and near the embankment.

Under the supervision of these engineers, the defendant re-enforced by manual labor the embankment by sand bagging and filling in with earth, so that the width of the embankment was increased by from twenty-five to fifty feet to a distance of from seven or eight feet below the level of the top of the original embankment. After this reinforcement had been made two or three hundred feet in advance of the position of the dredge at work in the canal, the defendant was instructed to deposit the material in the area so prepared, and the work was carried on in the usual manner until near 7 o’clock on the evening of January 14th, 1936. Before this date the deposit of fixed earth against the existing embankment in this section of the area of disposal had been raised to a level of from four to five feet below the top of the embankment. The outlet of the line of pipe was from 800 to 1000 feet away from the embankment, and its discharge emptied upon the ground where the effluent spread out and was allowed to stand confined, so that the solid matter would gradually settle to become fast earth, while the water, as it cleared, was drawn off from the top through spillways and flumes and thence flowed into a ditch at a point approximately 1200 feet from the section of the embankment where the accident occurred.

The ditch was government property and in it the discharge of water flowed into Back Creek. The spillways and flumes were erected by the Government, but, during the period of its contract, the defendant was charged with their maintenance. When the contractor began its undertaking, it doubled the structural strength of the spillways and they were thus made capable of sustaining whatever strain might be imposed. With the adequate equipment all in order and so maintained, and the discharge of the dredged material and the flow of water both so controlled and directed as not to affect the em ²⁰⁴ bankment which moved out, the work of dredging proceeded without any testimony offered of negligence in construction or operation for which the defendant was responsible.

The contract was to dredge approximately 3,149,700 cubic yards of material in the Canal between Bethel and Chesapeake City, which was over a mile, and the area provided by the Government for the deposit of this material between these points was estimated in the testimony to be from 6000 to 8000 feet in width. The work was carried on under governmental control and in accordance with' definite specifications. The contract required the material to be transported and deposited at such places within the disposal areas which the United States had provided, or which the contractor could provide, and the contractor agreed to construct and maintain all embankments necessary, in the opinion of the Government’s representative, for confining and grading the material, with necessary sluices and drain ditches. The contractor further agreed to be responsible for all damages to persons or property that might occur as a result of his fault or negligence in connection with the prosecution of the work.

The disposal area used by the contractor was provided by the Government. It does not appear whether the foot-way or base of the embankment was natural or artificial. It was one whose surface had been raised by the accumulation of material deposited by former dredging operations with which the defendant is not shown to have had any participation. -The testimony is that, before the happening of the injury compained of, approximately 1,000,000 cubic yards of material had been dredged and deposited in the whole area between the place of the break in the embankment and Bethel, which is a distance of about a mile. During the progress of the work, it was under governmental control and inspection.

The representatives of the United States to perform these functions were an inspector, a resident engineer, and the principal engineer in charge of dredging. The defendant kept there a superintendent in charge of its work, and a ²⁰⁵ watchman who, for protection, patrolled the embankment every half hour. There is no suggestion that these officers of the United States and of the defendant were, at any time, negligent or failed in the performance of any duty in respect of the embankment. On the day of the injury all the officers named were engaged in the performance of their duties of inspection, supervision, and control.

They had all been at the embankment. The superintendent was there at least twice and found the embankment in excellent condition, and saw no indication of weakness. He was there the last time about two hours before the work stopped. Three or four minutes after the pumping ceased, between half past six and seven on the evening of January 14th, 1936, a section of the embankment, between 150 and 200 feet in length, moved out, and, carrying with it 160 feet of the concrete highway at its toe, the entire mass slid into the waters of Back Creek, and broke and thrust into a gorge the ice which covered the creek with a thickness of twelve inches.

The premises of the plaintiffs were not invaded, as the plaintiffs did not prove any title below the high water mark (Acts of 1862, ch. 129; Code, art. 54, sec. 48; Smoot Sand Co. v. Columbia Granite Corp., 146 Md. 384, 388 , 126 A. 91 ; Linthicum v. Shipley, 140 Md. 96 , 116 A. 871 ; Sollers v. Sollers, 77 Md. 148, 152 , 26 A. 188 ; Hess v. Muir, 65 Md. 586, 607 , 5 A. 540 , 6 A. 673 ; Day v. Day, 22 Md. 530 ; Browne v. Kennedy, 5 H. & J. 195, 203 ; Emergency Relief Appropriation Act of 1935, approved April 8th, 1935, eh. 48, 49 Stat. 115 ; see Adams v. Carey, 172 Md. 173, 182 , 190 A. 815 ), but the mass precipitated into the creek so filled its channel and bottom that the navigation of which it was susceptible was destroyed, except at extremely high tide, and the plaintiffs were consequently deprived of their former access to the property and dam by small row or power driven boats of light draft; and the filling of the channel also prevented the efficient operation of the weir in letting water in and out of the dam for the carp. The injuries sustained were, ²⁰⁶ therefore, not direct, and, so, not in trespass, but were indirect, and, so, consequential, and recoverable, if at all, in an action on the case. The navigability of Back Creek is restricted near the land in question by a low closed causeway which the Government has built across the stream. In addition, the channel did not float any but small boats of light draught.

The canal afforded the floatage for the navigation between the waters of the Chesapeake Bay and the Delaware River of the vessels which ply between the naturally navigable waters at either end of the canal. Nevertheless, in the bed of the creek the water regularly rises and falls with the tides and, therefore, the stream is within tidewater, and although its capacity of useful floatage is limited by the depth of the channel of the creek in front of the plaintiffs’ shore, nevertheless the riparian proprietor, although having no title superior to the public below the high water mark, was entitled to enjoy, along with the public, such floatage as the shoal water would provide until its status as a highway would cease from natural causes or by action of the State, when not in conflict with a federal dedication. Economy Light etc. Co. v. United States, 256 U. S. 113 , 41 S. Ct. 409 , 65 L. Ed. 847 ; Rex v. Montague, 4 B. & C. 598, 602, 107 Eng. Reprint, 1183; Havre de Grace v. Harlow, 129 Md. 265, 278 , 98 A. 852 ; Charlestown v. Middlesex County, 3 Metc.

(Mass.) 202, 203; People v. Vanderbilt, 26 N. Y. 287 . To the extent of its public use in the transportation by boat of person and property, the channel of Back Creek was a highway by water, although it was not actually adapted for passage by any but small craft, such as row boats and small launches, but to that extent it continued to serve a limited public purpose while its waters in the canal bore the vessels engaged in general commerce and transportation. Havre de Grace v. Harlow, 129 Md. 265, 278 , 98 A. 852 ; Sollers v. Sollers, 77 Md. 148 , 26 A. 188 ; United States v. Holt State Bank, 270 U. S. 49 , 46 S. Ct. 197 , 70 L. Ed. 465 ; United States v. Montello, 20 Wall. 430 , 22 L. Ed. 391 ; Rex v. Smith, 2 Dougl. 441, 99 Eng. ²⁰⁷ Reprint 283; Peyroux v. Howard, 7 Pet. 324 , 8 L. Ed. 700 , Fed. Cas. No. 11,207; People v. Tibbetts, 19 N. Y. 523 ; Attorney General v. Woods, 108 Mass. 436, 439 ; People v. Canal Appraisers, 33 N. Y. 461 ; Sim E Bak v. Ang Yong Huat [1923] A. C. 429; Walsh v. Hopkins, 22 R. I. 418, 48 A. 390 .

The deposit of earth and debris in the channel of Back Creek so that it would obstruct, impede, or destroy the accustomed use of the channel as a highway by water would be unlawful, and a riparian owner who has sustained a particular and special injury, in contrast with that sustained by the public generally, as a direct result of the deposit, may maintain an action to recover damages therefor against the wrongdoer. In the instant case the testimony tends to show that the slide of the embankment so filled the channel that its use as a waterway was destroyed. The special injury sustained by the plaintiffs was that the profitable business of impounding carp in the pond, and preparing them for the market and their sale, depended for the operation and financial success upon the power to raise and lower the level of the water in the pond by the regulated flow of the tidal waters in and out of the pond through a weir in its breast, and the ability to stock the pond with carp by bringing them in tow in live boxes, after having caught them in the confluent waters of Back Creek, Elk River and Sassafras River. The filling of the channel raised the level of the bed of the creek so high that the depth of the water in the pond could not be regulated, and rendered the property inaccessible by water.

The destruction of these advantages greatly diminished in value the property of the plaintiffs, and was the cause of a particular and special injury for which an action will lie. Garitee v. Baltimore, 53 Md. 422, 436-440 ; Lepire v. Klenk, 180 Mich. 481 , 147 N. W. 503 ; Morris v. Graham, 16 Wash. 343 , 47 P. 752 ; Bissell Chilled Plow Works. v. South Bend Mfg. Co., 64 Ind. App. 1 , 111 N. E. 932, 939 ; Lansing v. Smith, 4 Wend., N. Y., 9, 31, 32; Barnes v. Midland R. Terminal Co., 193 N. Y. 378 , 85 N. E. 1093, 1096 ; Tuell v. Marion, ²⁰⁸ 110 Me. 460 , 86 A. 980, 981, 982 ; Smart v. Aroostook Lumber Co., 103 Me. 37 , 68 A. 527, 532, 533 ; Home for Aged Women v. Comm., 202 Mass. 422 , 89 N. E. 124, 126 ; Hershey v. H. S. Kerbaugh, 242 Pa. 227 , 88 A. 1009 ; Rose v. Miles, 4 M. & S. 101, 105 Eng.

Reprint 773; Ratte v. Booth, 11 Ont. 491, affd. 15 App. Cas. 188. The action brought is not in trespass, nor is it for nuisance, but for negligence. The mere proof of particular and special damage is not enough to give a right of action. Unless the injury and wrongful act constituting' or causing the damage co-exist, the essentials for a recovery are not present.

The mere happening of the accident does not show negligence. The defendant in the instant case is a contractor in the occupancy of government property, where it is lawfully engaged in the use of the premises for an ordinary purpose and in a customary manner, pursuant to the terms of his contract with the Federal Government. The land of the plaintiffs lies across the width of Back Creek from the premises so temporarily occupied by the defendant as a contractor, and the channel of the creek runs along the eastern shore of the bed of the stream, parallel with the adjacent concrete state highway, until it is opposite the land of the plaintiffs, when it turns and flows westward to their shore. The defendant accordingly is not