Mayor & Councilmen of Frostburg v. Dufty

Robinson, J., delivered the opinion of the Court. The plaintiff’s house is on the east side of Bowery street, opposite the “Hitchins” property, and was injured hy being flooded with surface water and drainage, caused, it is alleged, by the negligent construction of the same sewer across Bowery street, wEich was the .subject matter of controversy in the Hitchins case. In addition to the proof offered in that case in regard to the grading of Bowery street, and the negligent construction of the sewer, the plaintiff proved that the defendant diverted the natural flow of his surface water from Hill and Loo streets, and conveyed it by gutters to the east' side of Bowery street, and thence to the sewer opposite the plaintiff’s house, — that the opening’made into the sewer for the water coming down on the east side of the street was negligently made, in consequence of which the surface water and drainage dammed up, and flooded the plaintiff’s house. So in this case it appears that the surface water and drainage was brought to the sewer by gutters on both the west and east sides of Bowery street. The defendant jrroved that the plaintiff’s house was built on ground made by filling up a dry run, which was the natural drain or outlet for surface water from the surrounding hills during heavy rains, and that the injury complained of was caused by said water flowing naturally to and against the plaintiff’s house. In granting the plaintiff’s first and second prayers, the question whether the injury was caused by the [54] negligent and unskillful construction of tlie sewer, was fairly submitted to the jury. The facts set forth in these prayers and upon which the plaintiff’s right to recover is based, are in themselves a denial of the facts relied on by the defendant, and it was unnecessary therefore to negative in terms the proof offered by the defendant. Quite a number of prayers were offered by the defendant, several of which it seems to us have no bearing whatever upon the issues before the jury. As to the first and second, it is sufficient to say, that the plaintiff’s right to recover did not depend upon the negligence of the defendant in grading its streets, or in the construction of its gutters, nor upon the fact that the surface water was brought in increased quantities to the mouth of the sewer. The real question in issue, was the negligent construction of the sewer, in consequence of which the plaintiff’s house was injured. The modification by the Court of the defendant’s third prayer was a proper modification. The plaintiff had the right in the exercise of his judgment, to build his house on ground made by filling up a dry run, and the fact that he may have suffered some injury by thus obstructing the natural flow of the surface water from the adjoining hills, is no reason, as we have said in the Hitchins case, why he should not recover damages for a wholly separate and independent injury resulting from the defendant’s negligence. Nor is there any objection to the modification of the fourth prayer. The defendant was liable not only for negligence in the construction of the sewer, but also-for negligence in failing to keep it in proper repair. We come now to the only question in regard to which we have had any trouble in this case. The plaintiff proved that in grading Bowery street the de - [55] fendant diverted the natural flow of the surface water, and conveyed it by gutters on the west side of the street to the mouth of the sewer. He also proved, that the defendant conveyed the surface water from Hill and Loo streets to the east side of Bowery street, and thence by means of gutters on the east side of Bowery street to an opening made in the culvert opposite the plaintiff’s house, and that this opening was made in such a careless and negligent manner, the water coming down on the east side of the ¿street dammed up, and flooded the plaintiff’s house. On cross examination of the' witness, however, it appears that the work on Hill and Loo streets, by which the surface water from these streets was brought to the east side of Bowery street, was done after the suit was brought. And this being the case, the defendant by its fifth prayer asked the Court to instruct the jury that the plaintiff was not entitled to recover “for any injury done to his property, by reason of surface water being conducted thereto, by the construction of ditches or gutters by the defendant on Hill street and on Loo street.” Now damages arising subsequent to the action may be taken into consideration, where they are the natural and necessary result of the act complained of. But evidence in regard to facts occurring subsequent to the action, and which are in themselves' a sufficient ground for a distinct suit is not admissible. The act complained of when this suit was brought was the grading of Bowery street and bringing the surface water on the west side of the street, to the mouth of the culvert, and which by reason of the negligent construction of the sewer was discharged upon the plaintiff’s premises. The work on Hill and Loo streets by means of which the surface water from these streets was conveyed to the east side of Bowery street, and thence to the sewer, had no relation or connection [56] with the injury for which the action was brought. Whether the sewer would have been sufficient for the escape of the surface water from the west side of Bowery street, hut for the additional quantity emptied into it from the east side, it is impossible for us to say. And as the water on the east side was brought to the sewer after the institution of this suit, the. evidence ought therefore to have been excluded from the consideration of the jury. We must for this error reverse the judgment, and we do so with some reluctance, if it he judicial so to speak, for it is high time the litigation in regard to this sewer was ended. For the third time it has been before this Court, and the ex-2>enses incurred in litigation far exceed the damages awarded by the jury, and exceed too, the cost of a new sewer across Bowery street. (Decided 9th January, 1889.) Judgment reversed, and nexo txdal atoarded.