The evening times. [volume] (Washington, D.C.) 1895-1902, 1900-08-28
AFFAIRS OF THE DISTRICT
Conflict of Authority as TO ReSpOn-
sibility for a Nuisance.
Grading of Street Causes an
Empty Lot 10 Fill With Water.
Which becomes StaEnant and
Fou1-Question of Abatement so BE
Submitted to the Court of Appeals.

Clarence A. Brandenburg. Assistant At
tosney for the District today handed to
the Commissioners his opinion on the
means of abatiRg alleged nuisance on
the vacant ground al the corner of Twelfth
and r Streets northeast lie informs the
Commissioners that he has considered the
subject with special reference to the re
port Of the Sanitary Inspector.
The facts" he says, do not fully APP
pear among the papers. but supplemented
by statements OF the Health Oficer. it
seems that r Street at the intersection OF
Twelfth Street northeast, was graded by
the authorities. This left the ground ad-
jacent thereto below the level OF the
street as graded. For some years waste
water from adjacent premises and rain wa
ter flowed over the lot in question and
then crossed r Street. ultimately reaching
a natural stream or outlet TO the river.
In consequence Of the grading Of the
street the water can 10 longer flow as il
formerly did. but accumulaJes upon the
adjacent private properly. becomes foul.
ana IS. in the judgment Of the Health De-
paTtmeut. a nuisance. The Health De-
paTtment sought TO require the abatement
OF this nuisance by proceeding in he Po-
lice Court against the owners OF the land
II seems that the justice holding the Po-
lice Court discharged the defendants on
the ground that the District authori les
had obstructed the natural flow Of the wa
ter by filling in r Street, and THAI IL IS
in consequence the duty OF the District
TO abate the nuisance which has existed
since the grading Of the street. and which
would not have existed but for such
grading,
"Divested Of other elements the subject
for consideration is the liability Of the
owner Of the property in question TO abate
a nuisance which has existed since tie
grading of he street, and which would LOT
have existed but for such grading.
BY Joint resolution approved April a.
1850. legalizing the health ordinances and
regulations for the District Of Columbia.
the following ordinance OF the late Board
Of Health was made the law OF the District
of Columbia.
e. That filthy, foul water. or other Of
fensive substance detrimental TO health.
thrown. placed CT allowed 20 remain in OF
upon any street or open lot IN the cities OF
Washington, Georgetown, or in the more
densely populated suburbs of said cities.
are hereby declared nuisances injurious 10
health, and any person who shall commit.
create, or maintain the aforesaid nulsances.
or either OF them. shall upon conviction
be fined Ont less than s. nor more than
S25 for each offence
This ordinance seems TO cover the case
in question. unless. as held by the presid-
ing Judge Of the Police Court. il is the
duty OF the District 10 abate it because in
grading the street the natural flow OF the
water from this lot was arrested.
In considering this matter ! am as
Stunning. as appears from the papers, that
the water which aCcumu ates upon the
vacant lot in question does not TOw from
the street. because il is conceded that the
District has no right 10 grade the street
so as TO require the surface water from
the street TO flow on private property.
If il is the duty Of the District TO abate
the nuisance. because it resulted from the
grading. il would seem to follow that the
District would be liable in damages 20 the
owner OF the property for falling TO do so.
And while that view is suggested By some
authorities il cannot be. IN MY opinion.
the Law of this Jurisdiction in view OF the
decisions of the Supreme Court Of the
United States that the District is not liza
bic for damages caused By changing the
grade Of streets"
M Brandenburg admits that there is
some conflict Of authority. but states that
the prevailing opinion seems to be that
cited IN FTeburg vs.. Davenport, SO
Iowa. 49,
90 A city has the undOubted right 10 bring
It's streets 10 grade in such a way, tins.
and manner as seems fit: and il has the
same right as the owners of abuttIng
lots to protect itself against surface wa
ter, hence where a defendant city with
out negligence, brought its streets 20
grade but failed TO construct adequate gut
tiers 10 carry off the surface water which
flowed from the graded street upon the
plaintiffs premises which were below the
established grade. il was held that the
city was not liable 10 the plaintiff for
damages caused by such water but had the
right TO presume that the plaintiff would
bring the premises 10 grade. and -hus
protest himself from the overflow "
The Attorney then quotes from several
authorities and cases and closes his Opin-
ion as follows:
AS each day that nuisance is main
tanned constitutes a new offence, l suggest
that a new information be procured against
the owner Of the property upon which the
nuisance exists, and that if the former Tul-
ing is adhered to in the Police Court that
proper exception be reserved to the end
that the case may be reviewed in the Court
of Appeals of the District of Columbia"
A NJ McLachlen, corner of Tenth and
G Streets northwest, recently requested
the Commissioners to grade and gravel
Lanier avenue, LanieT Heights. This
avenue he states, now has sewer and wat
er connections and gas mains, thus max n 9
it a thOroughfare OF no little importance.
During portions of the year. Mr. MCLache1
says, it is nearly impossible, especially the
western portion. He thinks that the grad
ing and gTaveling of the avenue would be
of great public benefit.
c. b, Hunt, the Computing Engineer. in
reporting upon the application at the rs
quest of the Commissioners. recommend
ed that the writer be informed that the
grading and grayeling Of LanieT Avenue is
of such a character as would necessltate
a special appropriation. and that consider
alton OF its merits will be gwen at the
time OF the preparation Of the improve
ment schedule. Mr. Hunt further recon-
mended that the application be placed on
the improvement file in order that it might
receive attention at that time.
The recommendations OF the Computing
Engineer were this morning approved by
the Commissioners.