Harrison vs. Sterett, 4 H. & McH. 540

APRIL TERM, 1774. Harrison vs. Sterett. This was an action on the case for a nuisance; and the plaintiif’s declaration was as follows, viz. “ Maryland: Baltimore county, sc.

James Sterett, late of Baltimore county, gentleman, was attached to answer unto Thomas Harrison in a plea of trespass on the case, &c„ And whereupon the said T. by John Hall, his attorney, complains, that he the said T. on the 21st day of May, in the year 1741, at the county aforesaid, was lawfully and peaceably seised in his demesne as of fee, and continually from thenceforth hitherto ivas seised, and yet is seised as aforesaid, of and in a certain parcel of land and marsh, part of a certain tract or parcel of land called Cole’s Harbour and Todd’s Range, with the appurtenances, in Baltimore county aforesaid; which said parcel of land and marsh, by the whole time aforesaid, was and is bounded on the south by a certain navigable river called the north west branch of Patapsco, which said navigable river, by the whole time aforesaid, used, uninterruptedly, to flow and reflow to and from the said parcel of land and marsh; by means of which said navigable river the said T. during the whole time aforesaid, hath enjoyed the advantage of sailing to and from the . said parcel of land and marsh, with all manner of boats, flats, scows, and other vessels, and of loading and unloading, at the same land and marsh, all manner of goods, wares, and other merchandizes.

And also that he the said T. on the said 21st day of May, in the year 1741, at the county aforesaid, was lawfully and peaceably seised in bis demesne, as of fee, and continually from thenceforth hitherto was seised, and yet is seised as aforesaid, of and in certain other lots or parcels of land, lying and being in Baltimore Town, in the county aforesaid, with the appurtenances, bounded as follows, to wit: On the N, by Water-street, on the E. by Corlcstreet, on the S. by the N.

W. branch of Patapsco river, and on the W. by Frederick-street; which same lots, by the whole time aforesaid, were bounded on the S. by a certain navigable river called the N.

W. branch of Patapsco, which same navigable river, during the whole time aforesaid, used, freely and uninterruptedly, to flow and reflow to and from the same lots; by means of which said navigable river the said T. by the whole time aforesaid, hath enjoyed the advantage of sailing to and from the same lots, with all manner of boats, flats, scows, and. other vessels, and of loading and unloading the same, at the said lots, with and of all manner goods, wares and other merchandizes.

Notwithstanding the said James, mot ignorant of the premises, but maliciously intending wholly to depreciate the value of the said parcel of land and marsh, and the value of the lots, with the appurte-nances aforesaid, and wholly to deprive the said T. of the advantage of sailing with all manner of boats, flats, scows, and other vessels, to and from the said parcel of land and marsh, and to and from the lots, with the appurtenances aforesaid, by means of the navigable river aforesaid, on the 1st day of April, in the year 1771, at Baltimore county aforesaid, the said navigable x*iver then continuing to flow and reflow as aforesaid to and from the said parcel of land and marsh, and to and from the lots aforesaid, did throw, put and place, a very large quantity, to wit, 500 scow loads of sand, earth and stones, in the said navigable river, contiguous to the southern parts of the said land and marsh, and of the Sots aforesaid, so that a great part of the said navigable river contiguous to the said land and marsh, and to the lot#aforesaid, to wit, of the breadth of ten yards, and of the length of 100 yards, is become dry land, by reason whereof the value of the said parcel of land and marsh, and of the lots aforesaid, is greatly diminished, and the said T. is deprived of the advantage of sailing with boats, flats, scows, and other vessels, to and from the said land and marsh, and to and from the lots aforesaid; wherefore the said T. saith lie is the worse, and hath damage to the value of 100'. current money; and therefore he brings his suit,” &c.

The defendant pleaded the general issue. Plots were made and returned» Bums ok Exceptions. 1. The plaintiff, at the trial, gave in evidence to the jury, a grant dated the 16th of February 1698, to James Todd, for the land called Todd’s Range, of which the land in the declaration mentioned is parcel. He also proved,the location of the same tract, in the manner laid down on the plots thereof returned in this cause. He further produced, and shewed in evidence, a deed from the said James Todd, the patentee, to Charles Carroll, Esquire, for the said tract of land.

He further proved in evidence, that the present Charles Carroll, Esquire, son and heir at law of the bargainee, being seised of the said tract of land, and actually possessed thereof, did on the 21st of May 1747, by deed of bargain and sale, duly acknowledged and recorded, bargain, sell and convey, for the consideration in the said deed mentioned, to the plaintiff, Thomas Harrison, and his heirs, part of the said tract of land called Todd’s Range, by the description in the said deed»

He also proved in evidence, the location of the said parcel of land in the said deed mentioned, agreeably to the plots thereof in this cause, beginning at £jie Jesters AA and running thence the black lines on the said plots, to the letter M. and from thence with the water to the letters AA aforesaid. He also offered in evidence the following acts , of assembly, to wit:

An act, entitled, “

An act,” &c. passed at November session 1766, ch. 22;

an act, entitled, “

An act,” &c. passed at May session 1768,. ch. 22;

an act, entitled, “

An act,” &c. passed at September session 1770, ch. 7; and also proved in evidence the location made by the commissioners in virtue of the said act, and that the lots were by the said commissioners laid out in the same manner the plaintiff hath located the same on the plots in this cause, beginning at the letter A, &c. He also gave in evidence, that the plaintiff,' at the time of placing and laying the dirt hereafter mentioned, and continually from the time of the deed aforesaid, in the year 1747, was seised in fee of the land in the same deed mentioned.

He also proved in evidence, a bond dated the 6th of January 1767, given by himself and sureties; in pursuance of the directions of the act of assembly aforesaid. It was proved also in this cause, that the N.

W. branch of Patapsco river, in the declaration mentioned, always, unless when the tide was lower than common, and usual low water, overflowed the place described on the plots to begin at the point or prick near the letter W. on the W. side thereof, which said place is circumscribed on the N. by the red plain line running E, from, &c. and that the said land always was, since the memory' of the witnesses, unless at such times as aforesaid, covered with water; and also that the water always flowed at a common low tide above the said red line first mentioned, into Water-street, described on the said plots; and also that the water always overflowed at common low tide the place where it is alleged the defendant has placed the dirt, &c. mentioned in the declaration.

Likevviso, that the water of the said branch does now, at a common low tide, flow over the place ciroumscrihed as above, beginning at a point near the letter W. except the said dirt &c. alleged to be placed by the defendant, and does also at. such tide surround the place where it is alleged the dirt, &c. was placed by the .defendant as mentioned in the declaration. The plaintiff also proved in evidence, that at common high tide, loaded scows, drawing 15 inches of water and upwards, might well pass on the water of the said N.

W. branch of Patapsco river to the land aforesaid of the plaintiff, opposite to and to the northward of the place described by the said letter W. on the plots; and that the defendant put and placed the stone, earth and sand, mentioned in the declaration, and of the length and breadth described in the same declaration, from the same letter \Y. to the letter X. marked on the plots, whereby that space was made dry land, and the plaintiff is hindered from sailing, or in any manner navigating scows or vessels of any kind, to his lands aforesaid, as he might have done before the laying and placing the earth, stone and sand aforesaid, in manner aforesaid.

Chase, for the defendant, objected, that the proof is variant from the facts specified in the declaration; the proof being, that earth, sand, <kc. was placed by the defendant in the water, but that the water flowed beyond the place where, &c. And he prayed the opinion of the court, and their direction to the jury, that the evidence aforesaid offered was materially variant from the matters alleged in the declaration in this cause, and did not support the same. Jenings, (Attorney-General,) also for the defendant.

The plaintiff declares that the defendant put a large quantity of stones and earth in the navigable river conliguous to the southern part of said land and marsh, and of the lots, so that a great part of the said navigable river, contiguous to said land and marsh, and to the lots, is become dry land. The intent of the declaration was to give notice of the charge, that the party may defend himself, and if he is at liberty to vary from it, it would be rather a trap than otherwise.

The declaration is, that the defendant lias thrown up earth, &c. contiguous; he must therefore prove it so, otherwise he may as well prove it in any other part of the river; and so set up to be superintendant general of it. The plaintiff has not declared, according to the truth of his case, which is essential for him to do. — Gilb. L, E. 240, 241, cites Styles, 355. Must prove the way. — Vin. Evid. 63, pi. 3. 1 Sail:. 385, pi, 37. 2 Salk. 661. A person cannot contradict his declaration, but if it stands general, he may