(concurring).
If the court’s opinion states the Maryland law correctly, then logically the ease should be affirmed rather than remanded. If, in Maryland, a defendant may be liable for failing to remove or warn of ice, formed from solely natural causes, which remains on a roadway under his control long enough to constitute a nuisance, then the District Court’s finding of negligence on the part of the Government should not be upset merely because an appellate court reaches a different factual conclusion. The District Court found that the ice remained om the roadway for a sufficient length of time to give the defendant notice and', an opportunity to rectify the situation. This finding was supported by evidence- and should not be upset merely because-this court disagrees. However, I concur in the judgment of non-affirmancefor different reasons. The Maryland decisions, in my view, do not attach tort, liability to a defendant who fails to remove or warn of ice on a way if that, ice was formed exclusively by the elements. This is simply not negligence-as a matter of law.
One of the earliest and most frequently cited Maryland cases concerning the-liability of a municipal corporation for the condition of its streets, and dealing specifically with snow and ice on a public way, is Mayor & City Council of Baltimore v. Marriott, 1856, 9 Md. 160. There ice had been permitted by the-City to remain for a long time on a sidewalk and the plaintiff slipped and fell on it, thereby injuring himself. The-Court of Appeals held that because the-City had the statutory “power and authority” to prevent and remove nuisances, it had the same “duty and obligation” to prevent and remove them as a private individual at common law. It was further held that since the ice on the footway constituted a nuisance, and the City did not use reasonable care, and diligence to remove it, the plaintiff could recover.1
Marriott is probably the leading casein Maryland on the duty of municipalities and other organs of local government to prevent or abate nuisances. Its principle has been invoked to permit recovery for personal injury in a wide variety of situations.2 On the other *889Tiand, the Marriott doctrine has been limited by many decisions, not all, perhaps, entirely consistent with those applying the doctrine.3
If there were not later cases in Maryland dealing with accidents caused by .snow, ice, or slippery conditions on a roadway or walkway, it would appear from the Marriott decision that if a •defendant, whether an individual or a municipality, knew or should have known •of such a condition on a way under his control, and did not take sufficient precautions to prevent it, he is liable. This would place an extremely heavy burden •on persons and governmental bodies today, with the great number of streets and highways, the size of municipalities, the ever increasing volume of automobile travel, and the problems connected with snow and ice removal. Recognizing this, subsequent Maryland eases, against both private individuals and municipalities, have limited a defendant’s liability for snow, ice, or slippery conditions.
In Flynn v. Canton Co. of Baltimore, 1874, 40 Md. 312, the plaintiff slipped and fell upon ice on the sidewalk adjacent to the defendant’s place of business. It was alleged that snow had fallen frequently from time to time prior to the accident, that the defendant did nothing to remove it from the pavement, and that some of the snow melted and the water thus formed had frozen the night before the accident. The court recognized “the well settled principle that whenever a party causes, constructs or creates a nuisance or obstruction in a public street or highway, he is responsible in damages to any one who has received special injury in consequence thereof.” 40 Md. at page 326.4 Yet the *890Maryland Court of Appeals denied recovery saying:
“Here the nuisance, if such it be, was not caused or ci-eated by the act of the party sued. The ice, the occasion of the injury, was not on the property of the defendants, nor was it placed on the pavement through the slightest instrumentality or agency on their part. It was not even formed from water discharged or flowing from their premises. If from carelessness or negligence in the use or management of water, or waterpipes in their buildings or on their premises, the water from which the ice was formed, was suffered to escape or flow from their premises into the street and over the pavement, they would stand in a different position, because they would then have participated in causing the nuisance or obstruction. But there is no such feature in this case. Upon the facts in the record before us, the ice on which the plaintiff fell was formed solely and exclusively by the action of the elements.” 40 Md. at pages 326-327.
Thus, in Flynn, the court clearly held that no liability attaches to the defendant who merely fails to remove, or take precautions against, snow and ice formed from natural causes. For liability to arise, the ice or slippery condition must be, partly at least, the product of another act, neglect or nuisance attributable to the defendant. Failing to remove ice is not actionable negligence, unless combined with such additional circumstances.
The remaining Maryland cases dealing with this problem all adhere to the distinction formulated in the Flynn case. The court, in Magaha v. Mayor, etc., of City of Hagerstown, 1902, 95 Md. 62, 70, 51 A. 832, 834, extending this distinction to a case involving the liability of a municipality, stressed: “It would, for example, be very unreasonable to require the authorities of a city, such as Hagerstown, to keep its streets, between the sidewalks, at all times free from snow and ice.” There, however, the ice causing the plaintiff to fall was formed not solely from natural causes, but was the result of water from a saloon which was emptied, by means of a pipe, into the street. Because failure of the city to do something about the ice did not stand alone but was coupled with its failure to abate the nuisance causing the ice, i. e., the water emptying into the street from the saloon, the Court of Appeals permitted recovery. The distinction put forth in the Flynn case was again discussed and reaffirmed.5 The Court of Appeals stated, 95 Md. at pages 72-73, 51 A. at page 835:
“In order that we may not be misunderstood, we desire to emphasize the fact, at the risk of repetition, that we do not mean to say that the appellee would be liable if this ice was simply the result of snow or rain, or both, falling and then freezing. If it had been, and *891if the ice thereby formed was in large quantities in the streets, it would be exacting too much to require the municipal authorities to remove it. Under such conditions persons crossing the streets would or could know the danger, and would be required to use more care than is expected of them in walking on the sidewalk, and the conclusion we have reached is based on the particular facts of this case, which show that the ice was formed in the manner we have stated, and to such an extent as to become a nuisance, which it was the duty of the appellee to abate. The distinction is to some extent pointed out in Flynn v. Canton Co., 40 Md. 312, 17 Am.Rep. 603.”
Two later cases, both instituted against private individuals for injuries resulting from slipping upon ice on sidewalks, well illustrate the above distinction. In Newnam v. Moran, 1928, 154 Md. 650, 141 A. 385, liability was predicated on the fact that the ice on the walk was due to water dripping from the roof of the defendant’s adjacent building which lacked the proper rain gutter. On the other hand, in Realty & Mortgage Co. v. Ulrich, 1933, 164 Md. 666, 165 A. 708, in the absence of additional circumstances contributing to the injury, other than ice and snow on the walk naturally formed because of the weather, the court denied recovery.6
To restate the rule of law that I understand controls the instant case, it is established that in Maryland liability does not attach to a defendant who merely permits snow or ice accumulating solely from natural causes to remain on a way under his control, and it would come as a great surprise to Maryland lawyers if the Maryland Court of Appeals should in the future predicate liability on this alone. But a defendant is liable, assuming a finding of negligence, if the ice was there partly as a result of some other condition or circumstances under his control. It remains to examine the evidence and the District Court’s findings to determine, in accordance with this rule, whether they support the judgment.
Four days before the accident a heavy snow had fallen, which was scraped from the road and pushed to the sides. The highway, running east and west, sloped from north to south at the spot where the collision occurred. Several feet to the north of the road, there was a slightly depressed drainage ditch, called a “swale”, designed to carry water into a field ditch. The District Court pointed out that there are no curb drains on the north side of the road within 1,500 feet of the critical point, although on the south side, curb drains are spaced 300 feet apart. Photographs, taken a few hours after the accident, showed a heavy accumulation of snow on the north bank of the road.
The District Judge found that this particular location of the road was known as a “danger spot,” and that several persons, both on the day before the accident and earlier on the day of the accident, either noticed the ice at this point or felt their cars slip on it there, tie also found that Government Park Police, who patrolled the highway twenty-four hours a day, and who had the duty to report snow or icy conditions, or particular danger spots, and call for either plows or sanding if conditions warranted, should have discovered the patch of ice in question.
The District Court, in its opinion, observed that the plaintiffs attributed the collection of ice in the vicinity of the accident to poor drainage, and that one of their claims was. that the highway, together with its adjoining drainage and landscaping, was negligently constructed. However, after the trial had *892begun, the Government interposed the defense of discretionary conduct, under that exemption in the Tort Claims Act, 28 U.S.C.A. § 2680(a), as to questions relating to the construction of the road and adjacent area. Without expressly ruling on this defense, the court stated:
“At the end of the case the court was, and after a review of all the evidence still is, of the conviction that the evidence as to original construction and present condition of the highway and its approaches was intended, and was admissible, only to indicate the probability of icing at the point in question, the consequent obligation of the Government to anticipate this probability; and as showing that the affirmative testimony as to the presence of ice on this and other occasions was not completely implausible despite the testimony of highway patrolmen who did not observe icing at this point at the time in question, or at any time when icing was not generally prevalent on the entire highway.” Jennings v. United States, 178 F.Supp. 516, 521 (D.C.Md.1959).
The Government did not, apparently, object to treating the evidence as to construction in this manner, and made no point about it on appeal.
However, it is not apparent exactly how the District Court actually treated the evidence of improper drainage. After the above statement, the court observed that the plaintiffs’ counsel accepted the court’s position, and the court declared that it was counsel’s position that liability was not being claimed for negligent construction “but upon actual knowledge or constructive notice of the icy condition, and negligent failure to warn or remove it.” 178 F.Supp. 516, 521. But, as previously pointed out, I do not think that mere notice to the defendant of the presence of ice due to natural causes and “negligent” failure to remove would give rise to liability under Maryland tort law.
If the water collected at this spot because of poor drainage, or defective construction, or improper maintenance, or some other circumstance under the defendant’s control, and if the ice thus, formed was allowed, after actual or constructive notice, to remain without the defendant taking steps to abate the condition, there could be a basis for liability. The evidence in this case could support such a finding if this is what the District Court actually intended. On the other hand, if the District Court mean to predicate liability on the mere presence of the ice and the Government’s failure to remove or sand it, regardless of how the ice was formed, and apart from any considerations of defective or unusual drainage or construction, then I believe it was in error. The evidence, which was in conflict, would also appear to support this view, under which the Government should prevail. Which of these alternative views was. adopted by the court does not clearly appear. At one place in its opinion, the finding is:
“There was adequate direct, positive, and credible testimony to prove that under these conditions, the location at which the accident occurred was a ‘danger spot’; that because of the very slight (about 0.5 per cent) grade east-west of the highway, and the slight slope from north to south, water from heavy rains or melting snows would tend to settle initially on the westbound track; and because of its. shaded, sheltered condition, such water would freeze, or remain frozen, when the balance of the highway would be clear.” 178 F.Supp. 516, 521-22.
In the above finding, the court might seem to tie the presence of ice to the peculiar construction. However, the court concluded its discussion of liability with an ultimate finding that the United States is liable because it should have known of the ice and did nothing about it, making no reference to the ice being formed because of poor drainage, defec*893tive construction, improper maintenance of the drainage system, or any other unusual conditions.7
Because it is not ascertainable from the District Court’s opinion exactly what was the basis of its finding of liability, I think it appropriate to remand the case for more specific ultimate findings of fact. The plaintiffs in this court contend that liability was predicated on the Government’s failure to remove or sand the ice which was formed at this spot because the “swale,” or drainage ditch, was inadequate.8 However, no finding of the swale’s inadequacy was made, and no finding of any other specific defect as the cause of the accumulation of ice. If the court’s view of the facts coincided with the plaintiff’s position in this court, findings to this effect should be made. Such findings, under the principles of the Maryland cases, would support liability if the court reaches the conclusion that the defendant’s conduct in this combination of circumstances was negligent.9 On the other hand, if the court meant to rest liability on the mere presence of ice on the road, and failure to warn or remove, as the Government insists on this appeal, then judgment should be entered for the defendant. This is true regardless of considerations of constructive notice, knowledge, or the length of time the ice remained. Since there was extensive evidence relating to all phases of this case, it would not seem necessary to take further testimony on remand. However, this is a matter I would leave to the District Court’s discretion.
. See also The City of Providence v. Clapp, 1854, 17 How. (58 U.S.) 160, 15 L.Ed. 72, cited in Marriott.
. See: Mayor & City Council of Baltimore v. Pendleton, 1860, 15 Md. 12 (plaintiff’s horse fell into recently filled trench in street, the fill becoming soft because of snow); Anne Arundel County-Commissioners v. Duckett, 1864, 20 Md. 468 (failure to keep streets in repair); (plaintiff injured by boys coasting with a sled on a street and City hold liable for not preventing the nuisance) ; Hitchins v. Town of Frostburg, *8891887, 68 Md. 100, 11 A. 826 (city liable for injury caused by negligently constructed sewer) ; Cochrane v. Mayor, etc. of City of Frostburg, 1895, 81 Md. 54, 31 A. 703, 27 L.R.A. 728 (plaintiff injured by a cow running at large on a street) ; Keen v. Mayor, etc., of City of Havre de Grace, 1901, 93 Md. 34, 48 A. 444 (plaintiff stumbled because of a hole in the sidewalk which had been there for three weeks); Mayor, etc., of City of Hagerstown v. Klotz, 1901, 93 Md. 437, 49 A. 836, 54 L.R.A. 940 (City failed to enforce ordinance preventing riding of bicycles above certain speed, and pedestrian was struck by speeding bicycle); Mayor, etc., of Baltimore City v. Beck, 1903, 96 Md. 183, 53 A. 976 (private individual left quantity of bricks on street without lights or other warning); Mayor, etc., of City of Havre de Grace v. Fletcher, 1910, 112 Md. 562, 77 A. 114 (City liable where beer kegs stacked near sidewalk so as to be dangerous to passerby); Mayor, etc., of City of Hagerstown v. Crowl, 1916, 128 Md. 556, 97 A. 544 (where building was being constructed along a sidewalk, and passerby struck by falling mortar, City held responsible for providing barricades); Mayor, etc., of Baltimore v. Bassett, 1918, 132 Md. 427, 104 A. 39 (hole in the street). See also: Mayor and City Council of Baltimore v. Eagers, 1934, 167 Md. 128, 173 A. 56; Mayor and City Council of Baltimore v. Thompson, 1937, 171 Md. 460, 189 A. 822; East Coast Freight Lines v. Mayor and City Council of Baltimore, 1948, 190 Md. 256, 58 A.2d 290, 2 A.L.R.2d 386; 3 West’s Maryland Law Encyclopedia, Automobiles, sections 301-309.
. See, e. g.: Altvater v. Mayor and City Council, 1869, 31 Md. 462 (no recovery against City of Baltimore where plaintiff injured by sled speeding along street, as it is duty of police to abate such nuisances, and Baltimore City Police are no longer officers of the City but of the State); Taxicab Co. of Baltimore City v. Mayor, etc. of Baltimore, 1912, 118 Md. 359, 84 A. 548 (no recovery where injury caused by unlighted obstruction in street, as it is duty of police to abate this); Wynkoop v. Mayor and City Council of Hagerstown, 1930, 159 Md. 194, 150 A. 447 (doctrine of Marriott’s case apparently confined to unsafe conditions of public streets and highways) ; County Com’rs of Harford County v. Love, 1938, 173 Md. 429, 196 A. 122 (no recovery for injury caused by negligently constructed and poorly lighted stairway in county courthouse). See also: State v. Rich, 1915, 126 Md. 643, 95 A. 956; Gutowski v. Mayor, etc., of City of Baltimore, 1916, 127 Md. 502, 96 A. 630; Cox v. Board of County Com’rs of Anne Arundel County, 1943, 181 Md. 428, 31 A.2d 179; Stottlemyer v. Groh, 1953, 201 Md. 414, 94 A.2d 449.
. Also, there was a city ordinance which cast upon the defendant the duty to keep the pavement clear of snow and ice. The *890court, however, was of the opinion that liability could not be predicated on this ordinance alone as it was in Marriott’s case. The ordinance in Flynn was construed as merely making private individuals the agents of the city for purposes of removing snow and ice. If, under the ordinance, a private individual neglected to remove snow and ice, then the city was to remove it and could charge the adjoining landowner a fee for this. Hence, the court was of the view that ultimate statutory responsibility for removing snow and ice was on the municipality, and tort liability based solely on the ordinances fell upon the city only.
. In the Magaha case, the court rejected another distinction recognized in several jurisdictions. This is that while there is no liability for fallen snow or ice which is still in its “natural, smooth state,” if it has been pushed into mounds or ridges, it thus constitutes an obstruction or an aggravated danger giving rise to liability. For a comparatively recent case recognizing this distinction, see Smith v. District of Columbia, 1951, 89 U.S.App.D.C. 7, 189 F.2d 671, 39 A.L.R.2d 773.
. See also: Mayor and City Council of Cumberland v. Turney, 1939, 177 Md. 297, 9 A.2d 561; Leonard v. Lee, 1948, 191 Md. 426, 62 A.2d 259; Gravatt v. Sansone, Court of Common Pleas of Baltimore City, Daily Record, Baltimore, January 25, 1981.
. The court stated: “From the foregoing the court finds as fact that an icy condition, at least 25 feet in length, and 6-8 feet in width, was present on the westbound lane of Suitland Parkway at the place where Stewart’s auto skidded, from before midnight on January 22, 1956 until after the collision in which Stewart and Donald were involved, that past experience should have led the Government to anticipate at least the possibility of such condition; that the condition was dangerous to automobile traffic; and that the size, location and duration of the ice patch were such that the Government by the use of reasonable care in patrolling the Highway should have discovered the condition in time by the use of reasonable care to have sanded the ice or provided effective warnings thereof; but that the Government either failed to discover such condition (or, if it could be found that Moskaitis and/or Hayes did in fact become aware of the ice), failed to remedy or warn of such condition. The court rules as a matter of law that the failure of the Government to discover, or after discovery to remedy, such condition, was negligence, and was at least a proximate cause of the collision in which Stewart and Donald were involved.” 178 F.Supp. 516, 525-26.
. In their reply brief, the plaintiffs state: “The record shows that the ice was uniquely present at this portion of the road because of poor drainage. After this accident a drainage ditch was dug on this north bank, a picture of which was introduced into evidence, and the poor drainage condition was alleviated.” In the recital of the facts, the court refers to the “swale,” or drainage ditch, but does not again mention it, or indicate whether it is found to have played any part in the creation of the dangerous condition.
. The Government in this court did not contend, in reply to the plaintiff’s argument, that liability based on this combination, i. e., a defective condition giving rise to the ice and then failure to remove or warn of it, would fall within any of the exceptions of 28 U.S.C.A. § 2680. Moreover, even if this defense were interposed, I think it lacking in merit. Negligence of governmental employees in failing to remove or warn of ice, of which they had notice, caused by a defective condition under the Government’s control, is not the type of exception contemplated by the statute or the eases construing it. See: Dalehite v. United States, 1953, 346 U.S. 15, 73 S.Ct. 956, 97 L.Ed. 1427; Indian Towing Co., Inc. v. United States, 1955, 350 U.S. 61, 76 S.Ct. 122, 100 L.Ed. 48; Hatahley v. United States, 1956, 351 U.S. 173, 76 S.Ct. 745, 100 L.Ed. 1065; Somerset Seafood Co. v. United States, 4 Cir., 1951, 193 F.2d 631; United States v. White, 9 Cir., 1954, 211 F.2d 79.