Western Maryland Railroad v. Martin

Schmucker, J., delivered the opinion of the Court. This is an appeal from a judgment of the Circuit Court for Frederick County for damages in an action on the case for nuisance. The suit was brought in Washington County and removed for trial to Frederick County where the judgment appealed from was obtained. ⁵⁵⁷ The cause of action was an alleged injury to a farm and buildings owned by the appellee arising from the ponding back of water thereon caused by the construction, across a steam and ravine, by the appellant railroad company of an embankment with a culvert of insufficient size for the passage of the waters of the stream and ravine in times of ordinary freshets. The farm was rented to a tenant and was in his possession at the time of the injury complained of and at the trial of the case, and the cause of action set out in the declaration is distinctly declared to be the injury to the plaintiffs “reversionary interest” in the properly.

The immediate injury to the property was done during a freshet occurring on the afternoon of June 17, 1906. The declaration contains two counts in each of which the injury, for which damages are claimed, is alleged to have been that “the plaintiff’s dwelling houses were flooded and ruined, the household furniture therein greatly damaged, fences washed away, fruit trees, orchard products and growing crops destroyed, wells and cisterns filled with mud and debris, meadow lands along said stream made miry and untillable, buildings washed away and destroyed and other damages to the plaintiff then and there,” etc. The nuisance, to the existence of which the alleged injuries are attributed, is differently described in the two counts of the declaration. The first count alleges that the “culvert is entirely too small for the free passage of the waters of said stream and the surface waters flowing in said ravine so that the said stream and ravine now become dammed and chocked up and the waters thereof are ponded back upon the plaintiff’s land to the great nuisance of the plaintiff.” The second count alleges that the railroad company “negflgently constructed and improperly placed a culvert under its said track for the passage of the waters of said stream and that in times of freshets, such as are wont to occur in said ravine, the said culvert is entirely too small for the free passage of the waters of said stream and the surface waters flowing in said ravine and fence rails, brush, loose timber and such ⁵⁵⁸ other debris as said stream and such surface water usually carry with them, so that the said stream and ravine now becomes dammed and choked up and the waters thereof are ponded back upon the plaintiff’s land to the great nuisance of the plaintiff,” etc. The railroad company, as defendant below, pleaded the general issue, and, after the removal of the case to the Circuit Court for Frederick County, its trial before a jury resulted in a judgment for the plaintiff of $3,254.00. The record contains thirteen bills of exceptions of which eleven relate to rulings on evidence and two to the Court’s action on the prayers.

There is evidence in the record tending to show that the Western Maryland Bailroad Company’s line crossed a creek, in Washington County, known as Camp Spring creek at a point a short distance south of and below the appellee’s farm. Prior to the year 1906 the railroad tracks crossed this creek and the depression or valley, through which it runs, on a trestle about 175 feet long at the bottom and about 43 feet high where it crossed the creek. In the spring of 1906 this trestle was replaced by a solid fill or embankment under which a culvert was constructed at the crossing of the creek. The normal current of water in the creek through the appellee’s farm was only about six feet wide and six inches deep, but, as the valley ran along the base of a mountain, it was liable to rapidly increase in volume in times of sudden rains or freshets: The culvert was nine feet wide at its base, ten feet wide at the springing of the arch and eleven feet high, giving an opening of ninety-six square feet to receive the water.

There is technical testimony of engineers in the record tending to show that considering the topography of the vicinity the dimensions of the culvert are larger than necessary to provide for the water shed drained by the creek for the passage of which it was built, and other testimony tending to show that even if its capacity.be adequate to permit the passage of all of the waters of the stream and ravine its location ⁵⁵⁹ and shape are snch as to cause the flooding of the appellee's farm and buildings before its full capacity can be utilized. The record also contains much evidence both pro and con upon the question whether the freshet of June 17, 1906, during which the appellee’s land and buildings were injured, was such as by the exercise of ordinary care and prudence might have been anticipated or was an unusual and extraordinary one. We refrain from further reference to the testimony upon these controverted issues as they are plainly questions of fact for the jury, as is also the question as to which the testimony is conflicting whether the railroad company had been negligent in closing up the embankment before the sheet piling used in constructing the culvert had been removed from its interior. The testimony as to the nature and extent of the injury done by the freshet of June 17, 1906 — much of which was admitted over objections to be hereafter noticed — tends to show that, upon that occasion, the north end of the culvert, into which the water flows, became jammed with debris, of various kinds, including brush, rails, hay, the fragments of a bridge which had been washed away from higher up the stream, portions of the roof of a building all of which had come down on the swollen stream.

A piece of timber became wedged across the mouth of the culvert and held this jammed debris in position for several hours causing the water to back up upon and over portions of the appellee's farm until it rose to a depth of five or six feet in the two dwellings erected thereon, one of which was occupied by him and the other by his tenant and damaged the carpets and furniture in the rooms which it entered. The water thus ponded back submerged about one half of the' fourteen acres of meadow land belonging to the farm and about three acres of its upper fields, destroying the com and grass crops growing thereon. ' The houses stood near the bed of the creek at ail elevation of four or five feet above its ordinary level. The house occupied by the appellee was 800 feet from the culvert. ⁵⁶⁰ A large spring known as Big Spring lying between the plaintiff’s farm and the railroad embankment was also flooded, and a deposit of mud several feet deep was left in the spring, when the flood water receded from it. This deposit almost entirely stopped the flow of water into the spring from its usual sources of supply.

When the mud was drained off from the spring the normal flow of water into it gradually returned. It was testified by different witnesses, subject to exception, that, several weeks after the freshet of June 17, 1906, but before the flow of water into the Big Spring had been fully restored, wet places and springs of water appeared all over the meadow land of the appellee, only one-half of which had been flooded by the freshet. About ten acres of the meadow was thus turned into a marsh and rendered untillable and it had not fully dried out at the time of the trial. This meadow land is about 700 or 800 feet distant from the Big Spring and upon a higher grade.

There is also testimony, taken subject to exception, tending to show that the water which thus appeared in the meadow was of the same temperature as that of Big Spring and similar to it in appearance, and that as the flow of water in the spring increased the flow in the meadows decreased, and that if a pool of water which appeared near the appellee’s barn when the springs appeared in the meadow, was made muddy the water in the Big Spring became cloudy. There is also testimony tending to show that upon the occurrence of another heavy rain on August 27, 1906, the water in the creek again backed up until it was almost on a level with the first floor of the appellee’s house, and that it had never done so before the' erection of the railroad embankment. At the close of the testimony in the trial below the plaintiff offered three prayers and the defendant offered sixteen. The Court granted all of the plaintiff’s prayers and the eighth, ninth, tenth, eleventh, twelfth, thirteenth,* fourteenth and sixteenth of the defendant’s and rejected its other prayers. ⁵⁶¹ ' The plaintiff’s first prayer in substance instructed the jury that if they found that, prior to the construction of the embankment and culvert, the waters of the creek, including storm and -freshet waters, were accustomed to run unobstructed in their flow, and that the culvert is of insufficient capacity to carry off the water, which the defendant by the exercise of ordinary care and prudence might reasonably have anticipated and expected to be in the creek and the depression through which it ran; and.further found that by reason thereof in the summer of 1906 the said waters were ponded back and overflowed the plaintiff’s property and that he was injured thereby, and that but for the embankment and the insufficient capacity of the culvert the injuries would not have occurred, then the plaintiff was entitled to recover.

The second prayer was similar to the first, except that it predicated the plaintiff’s right to recover upon the finding by the jury that the injury to the plaintiff’s property by the ponding back of the water was the result not only of the insufficient capacity of the culvert, but also of its improper location. The plaintiff’s third prayer, which defined the measure of damages, was as follows: “If the jury find for the plaintiff, then in estimating the damages to be given by their verdict they may take into consideration any loss and injury they may find from the evidence the plaintiff has sustained by reason of the ponding back of the water over the plaintiff’s property which the plaintiff sustained from the time of such ponding back until the time of the trial of this case, and allow the plaintiff such sum as they believe from the evidence will compensate him for the damage and injury they may believe he has suffered from such cause, including compensation for injury to his land (if they find there was any injury) naturally and necessarily from such ponding.” The defendant, in addition to its general exception to the granting of the plaintiff’s prayers, specially excepted to the granting of the first and second prayers for want of legally ⁵⁶² sufficient evidence of the insufficiency or improper location of the culvert or that the plaintiff suffered any injury except from the overflow of June 17 th, 1906. The general principle of a defendant’s liability in cases like this upon which the plaintiff’s first and second prayers were founded is correct, as it is in accord with the rulings of this Court in the cases of P., W. and B. Ry Co. v. Davis, 68 Md. 281 ; Pied. and Cumb. Ry. v. McKenzie; 75 Md. 458 ; Sentman v. B. and O. R. R. Co., 78 Md. 222 ; Balto. and Sparrows Pt.

R. R. Co. v. Hackett, 87 Md. 224 ; New York, etc., R. R. Co. v. Jones, 94 Md. 24 . The plaintiff’s prayers, however, were all defective in not confining his right to recover, in respect to the alleged injury to the land and the houses thereon, to the damage to his reversionary interest therein. The declaration distinctly averred that he was only the owner of the “reversion” in the fawn which was alleged to have been “in' the possession of John Luther Rhodes as tenant thereof” at the time of the injury complained of. The undisputed evidence shows that at the time of the trial the tenant was still in possession of it, although the plaintiff resided in the smaller .of the two houses, but under what arrangement he did so was not disclosed by the testimony.

If the third prayer had properly directed the jury as to the precise elements of damage for which the plaintiff-was entitled to recover in case they