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street, as shown on the face of a plat in the city atlas, dated February 1 1
IS 14, entitled a plat of the grounds east of Ann street to Harris's creek, with I
levels for a canal, prepared by Jehu Boulden, at the instance of the sub-
scribers, wardens of the port of Baltimore; together with an estimate of the
expense of constructing a canal from Dulany at Ann street to Harris's creek
at Wilk's street, and signed by E. Ellicott, John Snyder, and W. McDo-
nald, who, it was admitted, were then port wardens, appointed by and act-
,ing under-the defendants. The plaintiffs also gave in evidenee the whole of
said plat, which it was agreed by both parties that the defendants should.'!
and would produce in the court of appeals at the argument of this cause, to be
regarded as part of this bill of exceptions. The plaintiff also gave in evi-
dence another plat in the city atlas, respecting which the same agreement
was made; the last mentioned plat is described on the face thereof as having
been made at the instance of Edward Johnson, Esquire^ mayor of the city
of Baltimore, for the information of the city council, la dated December,
1822, and signed Jehu Boulden; upon it is delineated that part of the city
bounded north by Monument street, west by Market street, and east by I
Patapsco street and Harris's creek. * -'*
The plaintiff, further to support the issue on his part, offered proof to the
jury, that a considerable time before the date of the aforesaid deed, the
plaintiff and John Craig, now deceased, purchased the property in the deed
mentioned and described, received a bond of conveyance therefor, and that
the possession thereof was, at the time of said purchase, delivered to the
plaintiff and the said Craig, in the lifetime of the latter. He also offered
evidence by Ephraim Smith, a competent witness, that the water from a
small spring called Giles's Old Spring, and the waters collecting between
Hampstead hill and Loudenslager's hill, and ran across- the street then called
Dulany street, (now Baltimore street extended,) and then across the grounds,
discharged itself into the cove, on the west side of the point, at a place
marked E on the plat; that he has been well acquainted with the said stream, ,•
its course, and the grounds over which the same passed, since the year
17S4; and that the blue line, ending at E on the cove, shows the natu-
ral channel of said stream, and of the waters accumulating between the /,
two hills aforesaid. In 1809, the said waters passed over Patterson's va- ;i
^ant lot, and then in front of witness's door, through deep gully or ravine;
in consequence of the memorial of the witness and others to the city coun-
cil, it was diverted from such its original channel to "Brick Pond," an
unimproved piece of ground within the limits of the city of Baltimore,
where it continued to flow until said pond was nearly filled up: that af-
ter the war, Pratt street extended was made, and then the aforesaid water
was turned, and run down Market street, Fell's "Point, and discharged itself
into the river at the point marked F on the plat. The defendants shortly
afterwards, by their agents, the city commissioners, carried into execution
the ordinances and resolutions above mentioned; and, in pursuance thereof,
the said commissioners made a dam at the intersection of Dulany street
and Ann street, (marked N on the plat,) and thereby turned the water
down Ann street; this was done about five or six years after the water
was first diverted from its "original channel, and conducted to the brick
pond: the dam at the intersection of Pratt and Market streets, (at the point
marked I on the plat,) by which the waters were so diverted from the
channel, and directed to the brick pond, was the first dam raised, and was
.made in 1809j the dam at the intersection of Dulany street and Ann street
15
aforesaid was the second dam raised, and was made about the year 1615;
the dam at the intersection of Ann and Smith, now George street, was
the third, and was erected about the same period; the dam at the intersec-
tion of Ann and Gough streets, at 0, was subsequently raised about the year
1822, and turned the water flowing from Giles's spring, and accumulating be-
tween the hills aforesaid, into Washington street; to accomplish which, the
defendants caused a bank, at least twenty feet high, to be cut through; from
which bank immense quantities of earth and gravel fell, and were carried
down by the water into Washington street, and thence on to a point marked
22, near the plaintiff's wharf, when the water was discharged into the
eastern cove, and where the deposites of earth became very great; and there
still remain large quantities of earth in the streets liable to be carried down
by future rains. Before the stream was thus diverted, the water in the cove
at the point 22, near to plaintiff's wharf, at least twelve to fourteen feet
deep, now, the same spot is entirely dry; this change, produced by the
deposite in that part of the cove of the large quantities of earth thus carried
down by the rain, &c.^ that, in heavy rains, much of the earth so carried
down was precipitated beyond the point Q Q, and formed a long bank or
bar,extending in front of plaintiff's wharf, and not distant therefrom; when
the streets or parts thereof were paved, more dirt was carried over them and
deposited. In 1798, at Gardner's wharf there were 20 feet water in the
said cove, at other wharves from fifteen to eighteen; where the water was at
that time twenty feet deep, it is now not more than ten feet deep. In 1815,
at plaintiff's wharf there were eighteen or nineteen feet water; at that time,
he has known the ship Franklin, burthened between four and five hundred
tons, and drawing upwards of seventeen feet of water, could and did come
up to plaintiff's wharf, receive a full cargo, and sail therefrom, as did other
vessel?, which have since been obliged to go to other wharves in consequence
of the shallowness of the water produced by the deposites aforesaid; these
deposites were occasioned by the banks put up as aforesaid, the grading of
particular streets, and the cutting of the hills as stated, and the turning of
the waters from their natural and accustomed channels, and bringing them
down through Ann street to Washington street, thence to the point Q Q,
Justbeforethe changescommenced,colonelBraysthrewtheship theship Gene-
ral Green down at the said point QQ, for the purpose of being repaired; there
was then more than twelve feet water there, and is now dry land as stated.
For one hundred yards after you leave said point, there are not two feet
water in ordinary tides; at low tides it is dry: the water at plaintiff's and
adjoining wharves was the deepest and best in the whole harbor; now, at
the extreme point of the wharf, it does not exceed fourteen feet: and, at a
little distance therefrom, a bar is produced by the deposite of the earth; over
which bar a ship of ordinary burthen cannot pass ' ' ' ~~* u~ «nii«,fi
over it even by means of a fast to the said wharf.
Ann and Dulany streets, the pavement is
the waters arising as"aforesaid are thrown i
at less costs, and with less injury, have beer
if so, it would have been a benefit, as it would have contributed m pun
to fill up the western cove, which the defendants are now filling up at z
very heavy expense, but no damage could have been done to the naviga
Uon of the harbor, and, by filling it up, the health of that part of th<
^ town would have been promoted; by properly grading and paving the streets,
the vrater now concentrated and carried off through Ann and Washing-
- intersection of
the 1 ^^ ^
t. the water might,
r I Natural channel;
contributed in part
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