Bembe v. County Commissioners

57 L.R.A. 279, 51 A. 179, 94 Md. 321, 1902 Md. LEXIS 25

Opinion

McSherry, C. J.,

delivered the opinion of the Court.

This suit was brought against the County Commissioners of Anne Arundel County to recover damages alleged to have been sustained by the appellant in consequence of the non-repair of a county road and a bridge forming part of that road. The declaration asserts that the bridge ran from the village of Eastport to the land of the plaintiff and there connected with the public highway running along the shore of the Severn river; that the plaintiff i'elying on the premises, that is, the existence of the. road and bridge, laid out large sums of money in the purchase and improvement of a considerable tract of land adjoining the highway, which highway, including, as a part, the bridge, was the only means of access that the plaintiff had from his property to markets, mills, churches and stores, and generally to communicate with his fellow-men for the transaction of his lawful business : That the highway was suffered and permitted by the defendant to become utterly impassable and the bridge was negligently suffered and permitted to become and remain out of repair and broken down so that it cannot be used: That the situation of the land of the plaintiff is peculiar and different from the situation of the land of other persons residing in the county, inasmuch as the land of other persons there residing is not cut off from access to a public highway as is the land of the plaintiff, whereby the plaintiff suffers a distinct and peculiar loss by reason of the action of the defendant and does not suffer a loss in common with others, he being entirely shut up and shut out from markets, mills, churches, stores and generally prevented from communicating with his fellow-men for the transaction of his business, and being thus shut up and shut out by reason of the non-repair of the highway and the bridge. To the declaration, of which the substance has just been stated, the defendant demurred. The Circuit Court for Anne Arundel County sustained the demurrer and judgment being entered thereon for the defendant the plaintiff took this appeal.

The question is : Do these facts constitute a good cause of action ? There has been no formal closing of the highway. Under the Code the method by which the County Commissioners may close a public thoroughfare is definitely prescribed; but there is no specific provision made for awarding damages to an abutting proprietor for the injury he may sustain, though as to the closing of a street in Baltimore City there is such a provision. Local Code, Art. 4, sec. 806; Van Witsen v. Gutman, 79 Md. 409. Whether a public road can be lawfully closed by the County Commissioners without compensating individuals who may be injuriously affected by the discontinuance of the highway is a question not now involved, and, therefore, not calling for a decision. Nor is this action at all akin to those wherein attempts have been made, but unsuccessfully made, to hold municipal authorities answerable in damages for injuries inflicted by a change in the grade of a street or highway; and consequently with the principles applicable to that distinct class of cases we have no concern in this.

The pending suit is founded on the alleged total obstruction of a public road including as a part thereof a public bridge. Had the obstructions, which are alleged to consist in a condition of negligent disrepair, caused an injury to the person of the plaintiff whilst attempting with due care to use the road there could be no doubt of his right to maintain an action therefor and to recover compensation for the injury. And so too had his horse or his carriage or other vehicle been in like manner injured he could sustain a suit against the defendant. The books are full of adjudged cases on these subjects ; the cases are familiar and have been of frequent occurrence and there is no need to pause for the purpose of alluding to them. The ground upon which such actions are supported is the negligence of the defendant in failing to keep the road or bridge in proper repair. The duty being upon the county to keep its roads and bridges in a safe condition for use by the public, and the county authorities having at their command the means and the money with which to maintain its roads and bridges in a condition of safety, the failure to perform the duty is actionable negligence if injury results therefrom-to one lawfully and with due care using the road or bridge. But the acts complained of in the declaration now under examination do not bring this case within the principle just announced, because this is not a suit for a personal injury or for an injury to personal property sustained whilst in actual use of the road, but it is a suit by an abutting proprietor for the maintenance of a public nuisance by the defendant whereby the plaintiff was injured not merely in being deprived of the ability to use the road at all, but in being deprived of access to and egress from his property. It is true that mere deprivation of the use of a highway because of its defective condition will furnish no ground of action, 15 Am. & Eng. Encyclo. L. (2 Ed.) 463; but here the averment goes farther and alleges that the plaintiff has been shut in from the outside world by reason of the non-repair of the highway.

Ordinarily and generally the remedy applicable to a public nuisance is by indictment, though a private action will lie at the suit of an individual who has sustained a special damage differing, not in degree, but in kind from that to which the community has been subjected. Crook v. Pitcher, 61 Md. 510; Garitee v. Mayor, &c., 53 Md. 422; Houck v. Wachter, 34 Md. 265. And the question is: Does this case under the averments of the declaration fall within this doctrine ? We do not recall at the moment any precisely similar case in our own reports; but the principles which ought to control the solution of the question are perfectly clear and there can be no serious difficulty in their application to the facts as admitted by the demurrer. The case of Houck v. Wachter, supra, will throw some light on the controversy now before us. That was a suit between two individuals. Wachter sued Houck to recover damages for the obstruction of a highway. The special damage alleged was that by reason of the obstruction which Houck had erected Wachter was obliged to go from his farm to his market-town, to mills and to the Court House by a very circuitous route, and the question was whether that was such special damage as would support the action—was it different in kind from the damage inflicted upon every other person who used the same public road. In the course of the j udgment delivered by this Court it was said: “ All the authorities agree that to support the action, the damage must be different, not merely in degree, but different in kind from that suffered in common, hence it has been well settled that though the plaintiff may suffer more inconvenience than others from the obstruction, by reason of his proximity to the highway, that will not entitle him to maintain the action.” Proceeding the Court further said : “ The special damage alleged is that having gone to Frederick City by the highway in question, as he was returning home, he met the obstruction, was withheld by the defendant from removing it, and in consequence, was obliged to proceed to his farm by a very circuitous route.” To show that such a damage was not speciál and not sufficient to sustain the action the Court further said: “ It is not averred that the highway, which was obstructed, was the only way to and from his farm or that it was necessary to enable him to pass and re-pass from his farm to mill, market, &c. The averment is that it was the most direct and convenient route.” A recovery was denied to Wachter because the damage of which he complained was of the same kind as that which other persons using the highway sustained by reason of the obstruction placed there by Houck. It would seem from the line of reasoning pursued that if Wachter had had no other highway over which he could have passed from his farm to markets and other public places, he could have maintained the action, because, in that event, the damage caused him would have been wholly different in kind from that sustained by the public generally. This conclusion is fortified by the decision in Gore v. Brubaker, 55 Md. 87. That was an application by Gore for an injunction to restrain Brubaker from erecting obstructions on a strip of land alleged to be a public way contiguous to Gore’s lot in the village of Uniontown, Carroll County. It was insisted that the obstructions if erected would deprive Gore of reasonable access to his buildings on his lot and would thereby subject him to loss and damage. This Court said : “ If the allegations of the bill were true, and the plaintiff had done nothing to preclude him from invoking the aid of the Court, there could be but little difficulty in affording him relief. For if, by reason of the obstructions complained of, in the public way or alley, the plaintiff had been obstructed or deprived of reasonable access to his buildings on his lot, and thereby subjected to loss and inconvenience, that would be such special and particular injury to the plaintiff as would entitle him to remedy from a Court of Equity. Roman v. Strauss, 10 Md. 89; Georgetown v. Canal Co., 12 Pet. 98; Irwin v. Dixon, 9 How. 10; Cook v. Corp. of Bath, L. R. 6 Eq. Ca., 177; Higbee v. C. & Am. R. Co., 19 N. J. Ch. 278.”

If an individual had caused the obstruction of the highway mentioned in the declaration now before us, he would assuredly be answerable in an action at the instance of the plaintiff if the facts relied on in the narr. were shown to be true ; and there is no reason why the County Commissioners should not be liable under the same state of facts if the obstruction has resulted from their negligent or persistent refusal to make the highway fit for travel. The fact that the County Commissioners have caused or are responsible for the continuance of the nuisance, can be no reason for defeating the action if it be otherwise maintainable, for public officials or municipal corporations have no more right to create or maintain a public nuisance than a private individual has. Co. Comm. v. Wise, 71 Md. 52. And the liability of the one, in such an instance, is similar to that of the other. Mayor, &c., v. Brannan, 14 Md. 227.

Inasmuch, then, as the declaration distinctly alleges that the highway with the bridge in question was the only means by which the appellant had access to and egress from his farm and buildings, it shows on its face a special and particular injury inflicted on the plaintiff by reason of the non-repair of the thoroughfare; and it shows an injury differing in kind from that which other members of the community can suffer from the same cause. Of course, if the appellant—the plaintiff below—has any other way or road by which he can get to and from his premises he cannot maintain this action even though he is put to more inconvenience or is required to travel a much greater distance in using the other highway. As we are dealing exclusively with the case made by the declaration we must confine our discussion to its legal sufficiency; and upon the case there stated we are of opinion, for the reasons we have assigned, that a good cause of action has been set forth. There was consequently error in sustaining the demurrer of the defendant, and the judgment entered in its favor must be reversed and the record will be remanded so that pleas may be filed and the cause may be brought to trial on its merits.

(Decided January 16th, 1902.)

Judgment reversed with costs above and below and new trial awarded.