Maenner v. Carroll

Alvey, J., delivered the opinion of the Court. The declaration in this case contains ten coants; and to the third, fourth, fifth, sixth, seventh and eighth, the defendants demurred ; and to the other counts there were pleas filed, and issues joined. The demurrers were sustained, and upon the trial of the issues of fact a verdict was rendered for the defendants. The plaintiff has appealed, and we are now' called upon to review the rulings of the Court helow. The third count, the first demurred to, alleges that the defendants were owners of a certain open and unenclosed lot of ground within the limits of the City of Baltimore, and that persons were in the hahit of passing over the same; and that the defendants cut on such lot, in a dangerous and exposed portion thereof, a deep excavation, and left the same in a dangerous condition, and liable to injure persons passing over the said lot; and that the plaintiff, while passing over said lot, on a certain night, being ignorant of the excavation, fell therein and was injured. This count entirely fails to state a sufficient cause of action. To constitute a good cause of action, in a case of this nature, there should he stated a right on the part of the plaintiff, a duty on the part of the defendants in respect to that right, and a breach of that duty by the defendants, whereby the plaintiff has suffered injury. Here .there is nothing of the sort shown. All the facts alleged in this count may he true, and yet the plaintiff would have no right of action against the defendants. The fact that persons were in the habit of passing over the lot, gave to the plaintiff no right to do so; and unless there was such right there was no breach of duty on the part of the defendants in cutting and leaving open the — 213 — excavation. A party has the right to use his land as he pleases, except as he may be restrained by duty to the public or to private individuals. But any individual who complains of the manner in which a defendant may have used his own land, should show with certainty and precision both the right of the; plaintiff and the duty of the defendant, and in what manner such right and duty have been violated. This count, as has been perceived, contains no allegation that there was any public way over the lot to entitle the plaintiff to pass over it, nor is there any allegation that the plaintiff, by reason of authority from the defendants, was lawfully or rightfully passing over the lot at the time of the accident. The only fact alleged to confer the right on the plaintiff is, that, persons were in the habit of passing over the lot; but that this was insufficient to establish a right in the plaintiff is too clear for question. And having no right to be on the lot, according to the facts alleged in this count, the injury which the plaintiff suffered by falling into the excavation must be attributed exclusively to his own fault. “If I place a log across a public path," says Dallas, J., in Dean vs. Clayton, 7 Taunt., 489; (2 Eng. Com. Law, 202,) “and injury be thereby sustained, the soil being my own, but the public, or individuals having a right of way over it, an action will lie, because there is a right in others to pass along without interruption; but if there be no right of way, I may with any view, and for any purpose, place logs on my own land, and a party having no right to be there, and sustaining damage by his own trespass, cannot bring an action for the damage so sustained. So, in the case put of a ditch, I may not dig it, so as to interfere with any public or private right, but within the limit of my own property adjoining a common, and not separated from it by any actual fence, I may dig a ditch however wide; and man or beast sustaining harm, having no right to be there, no action will lie. Such was the case cited of the horse — 214 — straying from the common, and falling into the pit, and in which it was determined that no action would lie, first, because the owner had a right to do what he pleased with his own land, and next, that the plaintiff could show no right for the horse to be there.” This passage from the opinion of the learned Judge, delivered in the case referred to, has been often referred to and cited in subsequent cases, as containing a clear and correct statement of the law upon the subject of which it treats ; and taking it to be correct, and applicable to this case, it would seem to follow, without further comment, that the ruling of the Court below in sustaining the demurrer to this third count was in all respects correct, and must, therefore, be affirmed. And as the sixth count is precisely the same in its averments as the third, except that the allegation in the sixth is, that the defendants permitted a deep excavation to be cut across said lot, which in the third allegation is, that the excavation was cut by the defendants themselves, it follows that the same principles which we have applied to the third count apply to the sixth also, and that the ruling of the Court in sustaining the demurrer thereto should likewise be affirmed. As is stated in the plaintiff’s brief, the fourth count differs from the third in alleging that there was a public higlaoay across the lot, and that the defendants permitted a deep excavation to be cut over the lot and across this highway, and the plaintiff, while walking on the highway at night, fell into the excavation and was injured. And the fifth count differs from the fourth only in alleging that there was a roadway in public general use across said lot, instead of a public highway, as alleged in the fourth count. But,., in considering the questions that arise on these counts, the difference mentioned may be treated as matter of form rather than substance, as by so doing the fifth count is taken in the most favorable sense to the plaintiff, which, under the well established rules for the construction of pleadings, is not allowed. — 215 — Now, it is certainly true, that every person who does or directs the doing of an act that will of necessity constitute or create a nuisance, is personally responsible for all the consequences resulting therefrom, whether such person be employer or contractor. Wilson vs. Peto, 6 Moore, 49. And where, as in this case, a person is sought to be made responsible for a nuisance, not simply on the ground of his being the owner of the ground on which the nuisance exists, but because he has ordered or directed the doing of an act in a public highway which has created a nuisance, it is necessary that the act be alleged either as having been done or caused to be done by the defendant himself, or by others under his direction and authority. Addison on Torts, 197. Here, the allegation is, not that the defendants cut the excavation, and left it in a condition dangerous to persons passing along the highway, but that they permitted others to do so. How permitted ? The sufficiency of this allegation turns upon the word “ permitted.” In what particular sense it was used by the pleader is altogether uncertain. It may be, for aught that appears on the face of these counts, that the defendants permitted the excavation by their mere silence and failure to interfere, or by not taking active measures to prohibit the making of the excavation over the lot and across the highway. Where there is want of certainty in the allegation of a pleading, the general rule is, that the sense of the averment is to be taken most strongly against the pleader; Chit. Pl., 237, 238 ; and giving to the defendants the benefit of this rule, the counts under consideration fail to state a sufficient cause of action. Mere permission in the sense suggested, would not be sufficient to render the defendants liable, without something more. It does not follow that because the defendants are the owners of the lot that they are liable for all the nuisances that may be created thereon, no matter by whom. This is illustrated in the case of land — 216 — lord and tenant. If a landlord demise premises which are not in themselves a nuisance, but may or may not become such, according to the manner in which they are used by the tenant, the landlord will not be liable for a nuisance created on the premises by the tenant. He is not responsible for enabling the tenant to commit a nuisance, if the latter should think proper to do so. Owings vs. Jones, 9 Md., 108; Rich vs. Basterfield, 4 C. B., 805, (56 E. C. L., 782.) In such case, it may be said, in one sense, that the landlord permitted the tenant to create the nuisance, but not in such sense as to render him liable. We think there can be no doubt of the correctness of the ruling of the Court below, in sustaining the demurrer to these counts. By the seventh count, also demurred to, it is alleged that the defendants were the owners of a certain lot of ground, over which, for many years, they had permitted all persons to cross and recross at pleasure, without hindrance or interruption; and that under and by virtue of this permission, leave and license, the public generally were in the habit of crossing and recrossing said lot at pleasure; and-that the defendants, with knowledge of this general user by the public, and without notice or warning, and without revoking the permission or license, cut a deep trench through said lot, and across the usual road or pathway on which persons were in the habit of crossing said lot, and left open and unguarded said trench or excavation ; and that the plaintiff, without knowledge of the existence of the excavation, while crossing the lot on the usual road at night, fell into the excavation and was injured. It is clear, there is nothing here alleged to constitute a public nuisance; and the only question is, whether the allegation that the defendants permitted all persons to cross and recross the lot at pleasure, without let, hindrance or interruption, and that the public generally were in the habit of so crossing and recrossing the same, under and by — 217 — virtue of said permission, leave and license, is sufficient to show in the plaintiff a positive right, such as is required to sustain this action? To determine this question in favor of the plaintiff would require, a construction more liberal than the terms of the allegation will fairly warrant. There is no positive right alleged ; and without such right the action cannot be maintained. In the case of Hounsell vs. Smyth, 7 C. B., (N. S.,) 731, the declaration stated that the defendants were seized of certain waste land, upon which there was a quarry worked by certain persons subject to the payment of certain royalties to the defendants; that this waste land was open to the public, “and that all persons having occasion to pass over the toaste land had been used and accustomed to go upon and across the same without interruption or hindrance from, and with the license and permission of, the owners of the waste land;” that the quarry was dangerous to those who might have occasion to cross over the waste, etc., and that the defendants, knowing the premises, negligently and contrary to their duty, left the quarry unfenced and unguarded, and took no care and used no means for guarding or protecting persons passing over the waste land from falling into the quarry; and that the plaintiff, while crossing the waste, not being aware of the existence of the quarry, and being unable to see it by reason of the darkness of the night, fell therein and broke his leg. Upon demurrer to this declaration, it was held, that there was no cause of action disclosed; and the Court, in its judgment, said: “Ho right is alleged. It is merely stated that the owners allowed all persons who chose to do so, for recreation or for business, to go upon the waste without complaint; — that they were not churlish enough to interfere with any person who went there. One who thus uses the waste has no right to complain of an excavation he finds there. He must take the permission with its concomitant conditions, and, it may be, perils.” If that — 218 — case was well decided it would seem to be quite decisive of tbe present question ; and that it was well decided we have no doubt. It has been sanctioned and followed' in several' subsequent cases, after full consideration. Binks vs. South York and River Dun Co., 3 B. & S., 244 ; Bolch vs. Smith, 7 H. c& 27., 736 ; Gautret vs. Egerton, L. R., 2 C. P., 371. In the last case cited the question was also raised upon demurrer as it is in the case before us ; and there the declaration stated that the defendants were possessed of land with a canal through it, and a bridge over the canal; which land and bridge were used with the consent and permission of the defendants by persons passing to and from certain docks ; that the bridge was wrongfully and improperly kept by the defendants, and that one G-., while lawfully passing over the bridge, fell and was drowned, by reason of the unsafe condition of the bridge. It was held that there was no cause of action disclosed under the statute giving a remedy for the death of a person caused by the wrongful act, neglect, or default of another. There is no doubt, however, of the general proposition, that an obstruction or excavation made on a party’s own land, and lawfully made, may give rise to an action, upon proof that such obstruction or excavation was concealed, and the plaintiff was invited or induced by the act or conduct of the defendant to pass over or near such obstruction, in ignorance of its existence, whereby injury resulted. In such case the plaintiff would have a right to rely upon the good faith of the defendant. And to this effect are several of the authorities relied on by the plaintiff’s counsel in this case; but there is nothing shown on the face of the count under consideration to justify the conclusion that the plaintiff was in any manner invited or induced, by any act of the defendants, to pass over the lot where the accident occurred. It follows, from what we have said, that the Court below committed no error in sustaining the demurrer to — 219 — the seventh count of the declaration ; and as the eighth count is the same as the seventh, except that it alleges that the defendants permitted the excavation to he made and and kept open by others, instead of by themselves, as in the seventh count, it follows from what has been said in reference to the fourth and fifth counts as well as the seventh, that the demurrer to the eighth count was properly sustained by the Court below. And having disposed of the questions raised on the pleadings, we have now to consider the questions raised by the prayers which were ruled upon by the Court below, and embraced by the hill of exceptions taken by the plaintiff. The question as to whether there was a public road or thoroughfare through or over the lot was fully submitted to the jury by the Court in granting the first and fifth prayers of the plaintiff; and as that question has been negatived by the finding of the jury, there should he no longer any contention in regard to that fact. It may, therefore, he assumed and taken as an ascertained fact that there was no such road or thoroughfare as that put to the jury to find in the prayers referred to. Upon careful examination of the case, we think the plaintiff obtained all the instruction to which he was entitled in the granting of his first, fifth, eleventh and twelfth prayers ; and indeed, it may be questioned, whether he was not allowed to occupy a more favorable position before the jury than he was entitled to occupy, in view of the evidence of the case, and especially that produced by himself. He proved by Hay, the contractor for grading Cole street, that he, Hay, was engaged in the business of grading, curbing and paving streets ; and that he graded Cole street from the west building line of Mount street to the east line of Eulton street, under an agreement with James Carroll, acting for himself and the other heirs of Charles — 220 — R. Carroll, several of whom, if is admitted, are infants. By the agreement, produced in evidence, Hay covenanted to do all the excavation in Cole street between the points just mentioned, and to complete such excavation within seven months. The plaintiff further proved by witness Hay, that in digging and excavating the hed of Cole street, the witness acted under the written contract produced ; that Cole street ran through the lot, and that the grade of the street had been established by the city authorities, and that the witness made the excavation to conform to such grade, which he received from the authorities of the city. The witness further proved that he commenced excavating the bed of the street in November, 1873, soon after the date of the contract, and finished the excavation and curbing in November, 1874. And after offering evidence tending to show that there was a roadway running over and across the lot, from the corner of Fulton and Ramsay streets, in a southerly direction, to and across the Baltimore and Ohio Railroad, near the Mount Clare Station, to the West Baltimore Schuetzen Park,, and as to the manner in which such way was used, the plaintiff then offered evidence to prove that the bed of Cole street crossed said roadway, and in excavating Cole street the contractor Hay cut over the lot, and across this roadway, a deep excavation, 12 or 14 feet deep, and about 40 feet wide ; and that no notice or warning of the intention to make such excavation was given, nor any guard erected to prevent people from falling therein, and that such excavation was in this condition about two or three weeks before the accident occurred. The defendants gave evidence to disprove the existence o'f any established roadway over the lot; and proved by Hay, the contractor, that shortly after he made the contract for grading Cole street, he ploughed up the entire surface of the street hed, between Mount and Fulton streets, and that this ploughed'surface was visible to everybody down — 221 — to the time of the accident, and indicated the place and extent of the proposed excavation ; that he commenced excavating at Mount street, and worked regularly along toward Fulton street, using ordinary care; that the work had heen going on continuously from November 1873 to to May 1874, the time of the accident; and that Hay was still at work when the accident happened. It was also proved that the lot was part of an open common, and that people crossed it as they crossed any other common in the suburbs of the city, where they pleased and when they pleased ; that there were paths and road tracks in different directions across the lot, some better defined than others, but none to be called regular roads. Cole street is one of the streets regularly delineated on Poppleton’s Plat, the regular map of the city, made by authority, over fifty years ago. There was no evidence whatever that any of the defendants ever exercised any control or supervision over the work, except as they were owners of the lot and had contracted with a competent workman to grade the street as laid out and defined on the city map, according to the gradient established by the municipal authorities. The contracting for the work was certainly a lawful act, and the making of the excavation, which was necessary in the execution of the work, was equally so ; and in order to render the defendants liable there must be shown a breach of duty by them to the plaintiff, in respect to some right of his to pass and repass over the lot. The question of the existence of a public highway or thoroughfare having been settled by the verdict of the jury adversely to the plaintiff, he now attempts to maintain a right to pass over the lot by what is called an implied or constructive license from the defendants. - It was not proved, nor is it contended, that there was ever any express license or consent given either to the plaintiff or to the public generally to pass and repass over the lot; but — 222 — it is said that because the lot was an open common, and every person was allowed to pass over it who desired to do so, and that people were in the habit of so passing, without hindrance or objection from the defendants, therefore, by legal construction, a license is to be implied to the plaintiff to pass and repass at pleasure, until such license was revoked by some positive act or declaration of the defendants. But we think this conclusion is not warranted by the facts relied on by the plaintiff; for if it be conceded that people did so use the lot, in the absence of authority for such user, the presumption would be that they were trespassers, unless the user was of a character and duration to be evidence of a right of way in the public by prescription,- — a proposition no longer involved in this case. If, however, it could be concluded from the evidence that there was such license or permission as contended for by the plaintiff, it is shown by the authorities already cited, that such license or permission conferred no such right upon the plaintiff as to entitle him to sue the ■ defendants for obstructing the way, unless there was some concealed trap or excavation made in the way, wdiich the plaintiff could not have discovered by the use of ordinary and proper diligence while in the use of the license. Here the excavation across the supposed way over the lot was open to the view of every one, and had been open for two or three weeks before the accident occurred, and was made in opening and grading one of the public streets of the city, the work on which had been in regular progress to that point for six months previous. It is true, says Martin, B., in Bolch vs. Smith, 7 H. & N., 745, (a case before referred to,) “the plaintiff had permission to use the path. • Permission involves leave and license, but it gives no right. If I avail myself of permission to cross a man’s land, I do so by virtue of a license, not a right. It is an abuse of language to call it a right: it is an excuse or license, so that the party cannot be treated as a tres — 223 — passer. Inasmuch as there was another way by which the plaintiff might have gone, but voluntarily chose the one which was out of order, I think he has no right of action against the defendant, and that he ought to have been nonsuited at the trial.” This was said, not in reference to a matter of pleading, but upon the evidence, as in the present case ; and it was but the adoption (which was done in express terms) of the principle of the previous case of Hounsell vs. Smyth, 7 C. B., (N. S.) 731, to which we have before referred. These cases announce no new principle, but were decided in accordance with the maxims and well established principles of the common law ; and they are quite distinguishable from that class of cases to which Corby vs. Hill, 4 C. B., (N. S.,) 556, belongs. In that case, the action was brought by the plaintiff for damages sustained while passing over a road leading from the main or turnpike road to an asylum and the residence of the superintendent adjoining thereto. It was there alleged and shown that the plaintiff, having lawful occasion to be on the road, was on it by the leave and license of the owners thereof, and that the defendant negligently obstructed the way by placing thereon certain building materials without giving notice or warning of the obstruction, and that,by reason thereof, the plaintiff’s horse was driven against the obstruction, and injured ; and it was held that the plaintiff was entitled to recover. But the right to maintain the action was put upon the distinct ground, as stated by Cockburk, O. J., that the proprietors of the soil had held out an allurement whereby the plaintiff was induced to pass over the road thus obstructed ; “ they held out the road to all persons having occasion to proceed to the asylum as the means of access thereto;” and as the owners of the soil could not justify, it was held that the defendant, acting under their license in placing the obstruction on the road, could not, and was therefore liable. — 224 — But, upon the assumption that there was a license or permission to the plaintiff to pass over the lot, it is contended that notice or warning should have heen given of the existence of the excavation, according to the principle of the case of Corby vs. Hill, and that the defendants committed a breach of duty in their omission to give such notice or warning. To this, however, it may he answered, that, even conceding the license or permission to pass as claimed by the plaintiff, and that warning of the obstruction in the way should have heen given, yet we think very ample warning was given, under the circumstances of the case, in the progress and condition of the work itself. All the plaintiff’s prayers, except the three last, concluded to his right to recover upon the facts therein enumerated, and these prayers, thus concluding, were, in effect, concessions of the truth of all such parts of the defendant’s evidence as had heen offered for the purpose of qualifying or avoiding the supposed right upon the plaintiff’s action was founded ; and if such evidence was sufficient to qualify or avoid the right asserted by the prayers, such prayers were properly rejected. Now, the uncontradicted evidence in regard to the condition and progress of the work is, that the contractor Hay, soon after his contract in November, 1873, ploughed up the entire surface of the proposed street bed, and that this ploughed surface was visible to every one down to the time of the accident in May, 1874 ; and that the work had been in a regular state of progression, and at the place where the accident occurred the excavation had heen open and visible to every person passing in that direction for two or three weeks before the plaintiff was injured. The principles we have stated fully cover all the facts of this case; and we think the Court below was entirely right in rejecting the second prayer of the plaintiff, and in granting the seventh prayer of the defendants, to the effect that there was no sufficient evidence in the cause of the exist — 225 — ence of any public highway over the lot by dedication. And the Court was correct in rejecting the sixth prayer of the plaintiff, not only for the reason just stated, but because that prayer failed to define what would constitute a legal dedication of a way to public use. The jury were not the tribunal to determine that question. They were competent to find the existence of facts to fulfil the definition, but not to determine the definition itself. The third prayer of the plaintiff was properly rejected, upon the ground that the mere implied or constructive license sought to be deduced from the facts therein stated, gave the plaintiff no right, and imposed no obligation upon the defendants, according to the principles heretofore stated. And the fourth prayer would seem to present substantially the same question as the first, and is therefore immaterial, inasmuch as the first was granted ; and the seventh, eighth and ninth prayers were also properly rejected upon the same principle that the third was rejected; and the tenth was rejected for reasons apparent upon the face of the prayer itself, and because in conflict with the principles herein expressed. The third prayer on the part of the defendants, which was granted, we do not understand to be controverted by the plaintiff; and we think the other prayers of the defendants which were granted were all free from objection, upon the principles we have stated in reference to the propositions made by the plaintiff. And it follows, therefore, that there was no error committed by the Court below, in its rulings upon the prayers of the respective parties. While the case was being argued before the jury, one of the plaintiff's counsel in support of his argument that there was evidence to establish the existence of a public highway over the lot, proposed to read to the jury a rejected prayer offered by the defendants, to the effect that there was no sufficient evidence in the cause of such high — 226 — way. To this the counsel of the defendants objected, and the Court sustained the objection, and we think most properly. The jury have nothing to do with rejected prayers, and counsel should not he allowed to refer to them, for the purpose of influencing the conclusions of the jury in regard to the facts' before them. Such a practice would be.exceedingly pernicious in its consequences, and it has never been allowed. (Decided 2nd March, 1877.) Finding no error in any of the rulings of the Court below, we shall affirm its judgment. Judgment affirmed.