Tyson v. Commissioners

Bartol, C. J., delivered the opinion of this Court. The first three bills of exceptions present questions of evidence, the fourth brings up for review the ruling of the Cir525 cult Court upon the prayers. These will be considered in their regular order. First Exception. The Act of 3831, ®h. 27, authorizing the building of a bridge across the Patapsco, at Ilehester, which recognized the road in question as a public road, was admissible in evidence; when accompanied by proof showing that George Ellieott, .under whom the plaintiff claimed title, was cognizant of the application to the Legislature for the passage of the law, knew and approved of its provisions and acted under it as one of the commissioners. This testimony was evidence of an admission by Ellieott that the road was a public road, and it also showed a recognition of that fact by the Legislature. Second Exception. There is no valid objection to the admissibility in evidence of the record of proceedings in 1835, for the condemnation of the road. The jurisdiction of the County Commissioners plainly appears on the face of the proceedings, Act of 1825, ch. 219, and its supplements; (2 Dorsey’s Laws, 1709, &c.) The alleged irregularities in the action of the special commissioners, even if such existed, would not render the proceedings void, when collaterally called in question.. These irregularities are supposed to consist in the omission of the commissioners “to value and ascertain the damages that may be sustained by each and every person through whose lands the road may pass,” as provided by the sixth section. Such an objection might have been made by parties interested at any time before the final ratification of the return, as prescribed by the seventh section; but could not afterwards be made even by a party interested. Where no damages have been awarded, and the return has been finally ratified without objection, the presumption is that no damages were suffered or claimed by the proprietors. It is very clear upon principle and authority that after the final ratification, the proceedings cannot be collaterally impeached, either on the ground that no damages or insufficient damages have been valued and ascertained by the commissioners. The same oh [526] servations may be made with, regard to all the other supposed irregularities in the proceedings of the special commissioners, relied on by the appellant as fatal to their validity. It appears that these commissioners made their return on the 7th day of July, 1835, the record recites that afterwards, on the 6th day of October, 1835, on motion of the petitioners, leave was granted them to withdraw the return of the special commissioners for the purpose of amending the same, and after-wards, on the 3d day of November, 1835, the petitioners returned the report and plat of said special commissioners as the same had been by them amended, which was accordingly filed, &c. The objection has been urged that there was no authority to allow the return to be withdrawn and amended by the petitioners, and that such an irregularity renders the whole proceedings void. But it appears that the amended return was made and signed by the special commissioners, not by the petitioners, and in the face of this fact appearing on the record, the recital that it was amended and filed by the petitioners, must be treated and considered as a ■ mere clerical error or misprision. It was within the discretion of the County Commissioners to allow the return to be amended by the special commissioners, and as the record shows that the amended return was their act, no valid objection can be made to their proceedings, after they have been finally ratified, because of the recital in the record, to which we have referred. Another objection has been urged that the description and dimensions of the road are not stated with precision in the commissioners’ return; the courses and distances in length alone being given, — this is not strictly correct. The commission directs that the road shall be located of the width of thirty-two feet; the return states that the road as located is of that width, except in certain places designated, where it was not practicable to construct it of the whole width. This departure from the directions of the commission is cured by the order of ratification. Eor these reasons we think there [527] was no error in the decision of the Circuit Court in the second exception. Third Exception. The opinions of the three persons appointed by the County Commissioners to examine the wall complained of, as to its probable effect upon the property of the appellant, was not admissible evidence for the purpose of proving the facts for which it was offered, and there was no error in its rejection. Those parties might have been called to the stand and examined as exports, but their opinions and views unsupported by oath were clearly inadmissible. Fourth Exception. This exception was taken to the rejection of the three prayers of the plaintiff, and the granting of the fourth prayer of the defendants. The questions presented by these prayers may be more briefly disposed of by examining' first the defendants’ fourth prayer, the granting of which determined the case in favor of the defendants, and if it correctly state the law, it follows that there could be no error in rejecting the prayers of the plaintiff, which assert legal propositions contrary to and inconsistent with it. The plaintiff’s cause of action was the alleged damage and injury suffered by him, in consequence of the increased flow of water upon his mill-dam, caused by the erection of a wall by the defendants upon the public road contiguous to and above the dam. The fourth prayer asserts the proposition that if the erection of the plaintiffs mill-dam in 1854, rendered it necessary that the wall complained of should be built, in order to the preservation of the road at that place, then the County Commissioners had the authority and right to cause the wall to be built, and if it were constructed with ordinary care, and was useful and beneficial to the road, they are not responsible to the plaintiff for any injury he may have suffered thereby. The law easts upon the defendants not only the right but the duty to protect the public roads from injury, and keep them in proper r-epair for the use of the public; individual rights must be held and enjoyed in subordination to those of the public. [528] If by reasonable or necessary improvements to a highway, a party suffers consequential damage, it is damnum absque' injuria, and no right of action accrues to him. This principle has been established by an unbroken current of decisions. Ely vs. City of Rochester, 26 Barb., 133; Radcliff’s Ex’rs vs. Mayor, &c. of Brooklyn, 4 Comst., 195; Smith vs. Corporation of Washington, 20 How., 135. In this case the defence of the appellees, as stated in their fourth prayer, is fortified by the fact that the act of the plaintiff in constructing his dam in 1854, whereby the waters were raised and the public road overflowed, rendered the erection of the wall necessary for the preservation of the road, so that the injury complained of appears to have been indirectly the consequence of the plaintiff’s wrongful act; in such case he would have no right to maintain an action even against private individuals. For these reasons we think there was no error in granting the defendants’ fourth prayer. The first prayer of the plaintiff asserts the proposition that if the road, as it had been laid out and used, was subject to be overflowed at that place, it was not lawful for the defendants to cause any obstruction to be placed at that point, so as to prevent the natural overflow of the road, as it had been used to be overflowed, before the erection of the mill-dam by the plaintiff. This proposition is erroneous. As we have said, the duty of the County Commissioners was to keep the highway in good order and condition for the use of the public. And this duty required them to adopt the necessary means to prevent it from being overflowed by water. They would not be justified in the neglect of this duty, merely because the natural flow of water had been allowed for any indifferent period to submerge the highway, to the inconvenience and detriment of the public. The second prayer is equally objectionable, it assumes that the effect of the erection by the plaintiff of his mill-dam, caused an increased overflow of the road, and denies to the defendants the right to erect the wall, even if necessary for the protection of the road, if thereby the water power of [529] the plaintiff was endangered and was actually injured.. This is inconsistent with the principles wo have before announced. The plaintiff could not lawfully claim the right to cause the public highway to be overflowed, nor deny to the defendants the use of the means necessary for its preservation. The third prayer is liable to the same objections as the first and second, and was also properly rejected. (Decided 20th April, 1868 ) Judgynent affirmed.