The daily gazette., 1879-05-27
THE COUNTY COURTS.
BALANCE OF YESTERDAYS PRO
CEEDINGS.

BALANCE OF YESTERDAYS PRO-
CEEDINGS.
THE MA0ARITY DAMAGE CASE OCCUPIES
ALL THE AFTERNooN-THB ARGU
MENTs OF COUNsEL-THK CASE STILL
UNFINISHED.
Especially reported for the GAzETTE.]
NEW CASTLE, May 26.-This morn
ing's Court proceedings closed with the
Magarity damage case still on trial. The
subsequent proceeding were as follows:
/ Levi H. Springer was recalled to show
that before the building Of the sewer all
the water of Shipley Run went under
Maryland avenue through a seven-feet
culvert, with no cement on the sides or
bottom.
Joseph L. Carpenter, Jr., testified that
In his opinion the raising OF the streets
In the neighborhOod of Mr.. Magarity's
house was an improvement to public
travel, and an advantage to the property
in the neighborhood, Mr.. Magarity's as
we'll as the others. IN his opinion, tie
location Of Mr.. Magaritys house was
not desirable one for the erecJlon of a
dwelling. For place of business it YVES
| very good location, and the building
attached would be convenient, but not,
in his opinion, desirable.
The defence here rested their case.
The plaintiff called Washington Cox
| to the stand. He testified that he rebuilt
the portion of the Monroe street sewer
between Second street, and Reed street,
Brown. The material used comprised a
| little cement, a good deal of black found
| ry sand, and little lime. The black
sand made the mixture look like cement,
but 1t was not calculated to make very
good job-except for the contractor. The
job was taken away from Mr.. Brown
| and given to witness, who finished the
job.
AN INSIGHT INTO WORK.
| In describing the character of sewer
walls, Mr.. Cox said it was not the GUS
| tom to mortar the stone that laid next to
tho bank, but to use it on the face of the
said in this job he used lime, sand and
cement, in equal proportions.
He further said that there never was a
sewer built in Wilmington until late
years that was good for anything. Mr.
Cox ST. ed that while the sewer was
being built he suggested to Mr.. Magari-
ty the propriety Of putting a pipe from
the cellar into the sewer, to carry off any
water that might get into the cellar, but
i tcdI uCu tudb tuC OOsbOAi VI thC COildl w dS
| few inches lower than the bottom of
the sewer, which would be more likely
| to make the water run into the cellar.
| Mr.. Cox said in his opinion, when the
| sewer was full, the water could force its
| way under the foundation and get into
Mr.. dagarity's cellar, which would MAKE
1t rise and fall in the cellar just as it rose
aud fell in the sewer.
Being cross examined witness said he
| Aid m knnm Whafhar tho oxuar la rod
or not, but was satisfied it would leak il
enough water was put into it, as he
never saw a stone wall built as sewer
walls are, that would hold water. Was
also satisfied that water would get ou
under the foundations Of sewers, but til,
! course this water would take after es
| Gaping would depend altogether upoi
4 what distractions 1t met with outside
1t would naturally take the easiest
| course.
Edward Butcher was sworn and testi.
fed that this morning be made measure.
ments, and found the bottom of the Gel.
lar of Mr.. Magarity's house was inches
below the bottom of the sewer, opposite
the nanhole on Monroe street.
The case for the plaintiff was here
rested.
Mr.. Lore, for the plaintiff proposed to
submit the case to the jury without argu-
ment, but the defendants counsel OBJ
jected, as they had some points of law
upon which they desiied the Court to
charge
Mr. Lore then proceeded to argue in
favor of the plaintiff and reviewed the
| evidence to show that it proved conclu-
sively the plaintiff had sustained dam
| age from the construction of the M orrow
street sewer and from the surface water.
At the conclusion OF Mr.. Lore's argu-
| ment, Court adjourned until 230 O'Clock
p. m.
AFTERNOON SESSION.
Upon the reassembling of Court Mr.
Macallister opened the argument for the
defence in the damage suit of Patrick
Magarity vs. the Mayor and Council OF
Wilmington. He claimed that the only
point the plaintiff could base his claims
for damage upon was the imperfect con
dition of The Monroe street sewer, which
allowed the water to come into the eel
lar and reviewed the testimony, TO show
that there was no evidence whatever tc
show that any water from the sewer
came into the cellar. He also argued
upon the impossibility of water coming
into the cellar from the sewer, in suct
quantities as had been alleged, without
resulting In the caving in or partial de
structien of the sewer.
Mr. Macallister argued that If the
water In the cellar was from the sewer II
would have been manifested by its OdOr
on account OF the filthy character OF the
water that flows down tho ever. H,
also revie wed the charater of the property
previous to its Improvement by Mr.. M 4
garity, and claimed that the low ant
marshy nature of the lot would natural
ly cause the house to settle, thus crack
ing the walls, and also produce water IL
| the cellar.
Mr.. Macallister also claimed that tn,
plaintiff, in addition to building hi
house ON low, marshy ground, also bull
it without the legal grades, and therefor
built it at his peril. He would ask tn
Court to c ar se the party that In such
case as this the jury 10 not liable for an,
damages that ensue.
MIR. Macallister's argument occupie,
about an hour and q half, and at lis con
clusion Mr.. Bradford, for the defence
asked the Court to instruct the jury IL
relation to the following propositions
J That damage resulting from mere SUI
face water, damage resulting from tn
insult cient size of the sewer inlets, an
damage from the insufficient size of tn
sewer itself, and what Is known in Law
as "damage without injury"
That the city Is not responsible for an
damage arising from the drain placed /
the plaintiffs cellar, when 1t Is prove
: that the drain was placed there ut tn
plaintiffs own request.
That the house was erected before tn
, legal grade OF Mary land Avenue, or tn
, elevation of the curb lines were estal
lished, and therefore the plaintiff bui
at his own peril.
That the plaintiff Is not entitled to an