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 alleged improper grading before he became owner thereof, but he says that the action contemplates no such recovery, but only claims damages for injuries resulting from the flow of water since his purchase, and he contends that the fifth prayer is erroneous, because it denies his right to recover, for subsequent as well as previous injury. In disposing of this point, therefore, we must see what the suit is for and what is the case made by the evidence. If, under the pleadings, he could recover for damage by the water overflowing his land since he became owner, we think the case does not show any such. The witnesses who testify on the question, speak of that kind of damage which must have occurred while Smith was owner, causing a permanent injury to the freehold, for which he, if any person, had the right to sue. Were it conceded that a party may complain of a nuisance when he purchases the property affected by it, with a knowledge of its existence, it is not shown here that the water from the avenue affects his lot, as a recurring nuisance. The damage is estimated at $500. Do the witnesses mean that every flood causes that amount of damage, or that the property is intrinsically and permanently depreciated that much by the original grading and paving of the avenue ? There is a gully through which the [396] water passes. If that was made by the water before the plaintiff acquired his title, and now carries it off, and if that is the damage referred to by the witnesses, as we think the case shows, it is clear that such cause of action accrued to Smith, and has not devolved on the present owner. There was, therefore, no error in the conclusion of this prayer, that the plaintiff could not recover, it being merely an assertion of the legal proposition that, in respect to the cause of action set forth in the prayer, the plaintiff had failed in making out his case. (Decided July 13th, 1860.) As the judgment must be affirmed, for these reasons, we are relieved from the necessity of passing upon the questions submitted for our consideration, as to the power of the corporation in respect to the acts out of which the suit is said to have originated. Judgment affirmed.