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204 Rights of Municipal Corporations. [Oct.
to be within tbe province of the city councils. Under each of
these beads of authority and discretionary provision, the mea-
sure complained of was vindicated by tbe defendants' counsel,
and sought to be legally sustained: it being in evidence that
the cutting down of streets, for grading and paving them, re-
quired the diversion of the waters, and that the navigation of
an important quarter of the harbor was benefited by tbe di-
version; and also that the health of the city was promoted by
it. Evidence to the reverse of these points was also offered
by tbe plaintiffs. The defendants insisted that the plaintiffs
ought not to recover: 1. Because the corporation, in divert-
ing the waters, acted as public agents in discharge of a public
duty imposed on them by law. 2. Because the corpora-
tion consists of the inhabitants of Baltimore city, and therefore
is not liable for any injury done by the acts of their servants and
agents. 3. Because the river and the soil of the river being
the property of the state, and tbe defendants being tbe agents
of the state [as a chartered company with legislative powers
for municipal objects] clothed with discretionary powers with
regard to the navigation of the harbor, tbe defendants are not
liable for the acts complained of by the plaintiff. 4. Because
if any wrong was done in filling up [tbe wharf] it was a public
nuisance.
Tbe defendants also prayed the opinion of the court that the
corporation, in grading and paving the several streets, and in
damming and turning the water, in those operations, at the
several places, acted within tbe scope of their lawful authority,
and that if the jury should find that they acted lonafide^ and
to the best of their judgment, tbe action could not be main-
tained.
Tbe court refused these prayers; but, in substance, direct-
ed the jury, that the plaintiffs were entitled to damages if they
should find that by the diversion of the waters, (though made
with due circumspection and the best advice, and in conse-
quence of cutting down and paving streets, for securing tbe
health of tbe city and to preserve the navigation) greater quan-
tities of earth and sediment were carried down by the diverted
streams to the property of the plaintiffs, than were carried
thither before the cutting down and paving. The measure of
damages the court decided to be, tbe amount of tbe depreci-
ation in value of the property; die loss sustained by the di-
minished income from it; and the injury sustained from the
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