Susquehanna Fertilizer Co. v. Malone

9 L.R.A. 737, 20 A. 900, 73 Md. 268, 1890 Md. LEXIS 83

• Court: Court of Appeals of Maryland
• Decided: December 12, 1890
• Status: Published

Opinion

Robinson, J.,

delivered the opinion of the Court.

This is an action for a nuisance, and the questions to he considered are questions of more than ordinary interest and importance. At the same time, it does not seem to us, that there can he any great difficulty as to the principles by which they are governed. The plaintiff is the owner of five dwelling houses on Eighth Avenue, in Canton, one of the suburbs of Baltimore City. The corner house is occupied and kept by the plaintiff as a kind of hotel or public house, and the other houses are occupied by tenants. On the adjoining lot is a large fertilizer factory, owned and operated by the defendant, from which the plaintiff alleges noxious gases escape, which not only cause great physical discomfort to himself and his tenants, hut also cause material injury to the property itself. The evidence on the part of the plaintiff shows that this factory is used by the defendant for the manufacture of sulphuric acid and commercial fertilizers — that noxious gases escape therefrom, and are driven by the wind upon the premises of the plaintiff, and of his tenants; that they are so offensive and noxious as to affect the health of plaintiff's family, and at times to oblige them to leave the table, and even to abandon the house. It further shows that these gases injure, materially, his property, discolor and injure clothing hung out to dry, “stain the glass in the windows and even corrode the tin spouting on the houses.

The evidence on the part of the defendant is in direct conflict with the evidence offered by the plaintiff; bnt still, assuming the facts testified to by plaintiff’s witnesses to be true — and this was a question for the jury— an actionable injury was done to the plaintiff, for which he was entitled to recover. No principle is better settled than that where a trade or business is carried on in such a manner as to interfere with the reasonable and comfortable enjoyment by another of his property, or which occasions material injury to the property itself, a wrong is done to the neighboring owner, for which an action will lie. And this, too, without regard to the locality where such business is carried on; and this, too, although the business may be a lawful business, and one useful to the public, and although the best and most approved appliances and methods may be used in the conduct and management of the business. Attorney-General vs. Colney Hatch Lunatic Asylum, 4 L. R. Ch. App., 147; Pinckney vs. Ewens, 4 L. T. Rep., N. S., 741; Stockport Water Works Co. vs. Potter, 7 Hurl. & N., 160; Rylands vs. Fletcher, L. R., 3 Eng. & Ir. App., 330. Ás far back as Poynton vs. Gill, 2 Rolle’s Abr., 140, an action, it was held, would lie, for melting lead so near the plaintiff’s house as to cause actual injury to his property, even though the business was a lawful one, and one needful to the public, “for the defendant,” say the Court, “ought to carry on his business in waste places and great commons remote from inclosures, so that no damage may happen to the owner of adjoining property.” And the doctrine thus laid down has been to-this day the doctrine of every case in which a similar question has arisen.

"We cannot agree with the appellant that the Court ought to have directed the jury to find whether the place where this factory was located was a convenient and proper place for the carrying on of the appellant’s business, and whether such a use of his property was a reasonable use, and if they should so find the verdict must he for the defendant. It may he convenient to the de- ’ fendant, and it may he convenient to the public, but, in' the eye of the law, no place can be convenient for the - carrying on of a business which is a nuisance, and which ( causes substantial injury to the property of another, j Nor can any use of one’s own land be said to be a rea-] sonable use, which deprives an adjoining owner of the! lawful use and enjoyment of his property. The only case which gives countenance to such a doctrine is Hole vs. Barlow, 4 C. B. N. S., 334, (93 Eng. Com. Law,) decided in 1858, in which it was held that if the place where the bricks were burnt was a proper and convenient place for the purpose, the defendant was entitled to a verdict, notwithstanding the burning of the bricks may have interfered with the physical comfort of the plaintiff. And it was upon the authority of this case that in Bamford vs. Turnley, 113 Eng. Com. Law Rep., 62, where an action was brought for a nuisance arising from the burning of bricks on the defendant’s land, near the plaintiff’s house, Cookburn, Chief Justice, directed the jury that, if they thought the spot was a convenient and proper one, and the burning of the bricks was, under the circumstances, a reasonable use by the defendant of his own land, the defendant would be entitled to a verdict, although the burning of the bricks was an interference with the plaintiff’s comfort.

This ruling was, however, on appeal to the Exchequer Chamber, reversed, and in the opinion delivered by Mr. Justice Williams and concurred in by Erle, C. J., Keating, J., and Wilde, B., after referring to a passage in Gomyn’s Digest, on which the decision in Hole vs. Barlow was founded, he says:

“In Hole vs. Barlow, however, the Court appear to have read the passage as containing a doctrine that a place may be f proper and convenient' for the carrying-on of a trade, notwithstanding it is a place where the trade cannot be carried on without causing a nuisance to a neighbor. This is á doctrine which has certainly never been judicially adopted in any case before that of Hole vs. Barlow, and, moreover, the adoption of it would be inconsistent with the judgments pronounced in some of the cases cited at the bar during the argument, and more especially with the case of Walter vs. Selfe, 4 De Gex & Smale, 315, 326. And the introduction of such a doctrine into our law would, we. think, lead to great inconvenience and hardship).” * * * “If it be good law, that the fitness of the locality prevents the carrying- on of an offensive trade from being an actionable nuisance, it appears necessarily to follow that this must be a reasonable use of the land. But if it is not good law, and if the true doctrine is that whenever, taking-all the circumstances into consideration, including the nature and extent of the plaintiff's enjoyment, before the acts complained of, the annoyance is sufficiently great to amount to a nuisance, according to the ordinary rule of law, an action will lie, whatever the locality may be, then surely the jury cannot properly be asked whether the causing of the nuisance was a reasonable use of the land. ’ ’

The question was again fully considered in Tipping vs. The St. Helen’s Smelting Company, 116 Eng. Com. Law Rep., 608, where an action was brought for a nuisance, caused by noxious vapors proceeding from the smelting-works of the defendant, and the verdict being for the-plaintiff, a motion .was made for a new trial, on the ground of misdirection by Mellob, J., before whom the case was tried at the Liverpool Summer Assizes in 1863. In overruling the motion, Cocebubít, O. J., said: “The direction of my brother Mellob cannot be found fault with if looked at by the light of the decision of the majority of the Judges of the Exchequer Chamber in Bamford vs. Turnley. That decision overruled the previous one of the Common Pleas in Hole vs. Barlow, and establishes that, where a case of nuisance is sought to be made out, it is not a right question to put to the jury to say whether the place where the act was done was a proper and convenient one for the purpose, or whether the doing it in that place was a reasonable use by the defendant of his own land.” An appeal was then taken to the House of Lords, and in his argument Sir Roundell Palmer contended that the learned Judge who tried the case had misdirected the jury, inasmuch as sensible discomfort from carrying on a necessary trade in an ordinary and proper manner and in a convenient and suitable locality, was not an actionable injury.

The Lord Chancellor said: ££It is said that, inasmuch as this copper smelting is carried on in what the appellant contends is a fit place, it may be carried on with impunity, although the result may be the utter destruction, or the very considerable diminution, of the value of the plaintiff’s property. I apprehend that that is not the meaning of the word £ suitable, ’ or the meaning of the word £ convenient, ’ which has been used as applicable to the subject. The word ‘ suitable,’ unquestionably cannot carry with it this consequence — that a trade may be carried on'in a particular locality, the consequence of which trade may be injury and destruction to the neighboring property. Of course, I except cases where any prescriptive right has been acquired by a legthened user of' the place. ’ ’

Lord Cranwortii said: ££In stating, what I always understood the proper question to be, I cannot do better than adopt the language of Mr. Justice Mellos,: £It must be plain that persons using a limekiln, or other works, which emit noxious vapours, may not do an actionable injury to another, and that any place where i such an operation is carried on so that it does occasion an actionable injury to another, is not in the meaning i of the law, a ‘convenient place.’ ”

So we take the law to be well settled that, in actions of this kind, the question whether the place where the trade or business is carried on, is a proper and convenient place for the purpose, or whether the use by the defendant of his own land is, under the circumstances, a reasonable use, are questions which ought not to he sub-mitted to the finding of the jury.

We fully agree that, in actions of this kind, the law does not regard trifling inconveniences; that every thing must he looked at from a reasonable point of view; that in determining the question of nuisance in such cases, the locality and all the surrounding circumstances should be taken into consideration; and that where expensive works have been erected and carried on, which are useful and needful to the public, persons must not stand on extreme rights, and bring actions in respect of every trifling annoyance, otherwise, business could not he carried on in such places. But still, if the result of the trade or business thus carried on is such as to interfere with the physical comfort, by another, of his property, or such as to occasion substantial injury to the property itself, there is wrong to the neighboring owner for which an action will lie. St. Helen’s Smelting Company vs. Tipping, 11 H. L. Cas., 642.

But then it is said there was a fertilizer factory on the lot on which the appellant’s works are now erected, and that this factory was used for the manufacture of sulphuric acid and fertilizers several years before the plaintiff built his house, and that the plaintiff has no right to complain because he “came to the nuisance.” But this constitutes no defence in this action.

If the - appellant had acquired a prescriptive right, that is to say, a user of the place for twenty years, that would, present a different question. But no such, right is claimed in this case. And that being so, the appellant had no right to erect works which would he a nuisance to the adjoining land owned by the plaintiff, and thus measurably control the uses to which the plaintiff’s land may in the future he subject. It could not, by the use of its own land, deprive the plaintiff of the lawful use of his property.

The question of coming to a nuisance was fully considered in Bliss vs. Hall, 4 Bing. N. C., 183, where, in an action for a nuisance arising from carrying on the business of making candles, the defendant pleaded that he had carried on his business at the same place, in the same manner, and to the same extent, three years before the plaintiff became possessed of his messuage. In sustaining the demurrer to this plea Tindal, Chief Justice, says: “That is no answer to the complaint in the declaration; for the plaintiff came to the house he occupies with all the rights which the common law affords, and one of them is a right to wholesome air. Unless the defendant shows a prescriptive right to carry on his business in the particular place, the plaintiff is entitled to judgment.”

Pabk, J., in Elliotson vs. Feetham, 2 Bing. N. C., 134, said that the defendant should at least have alleged a holding of twenty years duration. Here he does not go beyond three.

And in Crump vs. Lambert, L. R., 3 Equity Cases, 409: “Whether one,” says Lord Romillt, “comes to the nuisance or the nuisance comes to him, he still retains his right to have the air that passes over his land pure and unpolluted.” And so in Tipping vs. St. Helen’s Smelting Company, L. R., 1 Ch. App., 66, Vice-Chancellor Page Wood held, that the fact that the plaintiff had come tó the nuisance did not disentitle him to relief in equity.

It does not seem to us, therefore, that the defendant has any reason to complain of the several instructions granted hy the Court at the request of the plaintiff, or to the refusal of its own prayers. If there was any error on the part of the Court, it was, perhaps, in granting the defendant’s fifth prayer, to which, however, we take it for granted the defendant company makes no objection.

Now, as to the evidence offered in the first exception, it does not seem to us that the fact that $500,000 had been invested in other fertilizer factories in the neighborhood could have any hearing upon the issues before the jury. The defendant had already proved that there was a num,ber of fertilizer factories in the neighborhood, and had i offered evidence tending to prove that the nuisance com- , plained of, was caused hy these factories. Such evidence j as this was admissible and proper evidence. But the fact j that $500,000 had been invested in other works in the ' neighborhood could not in any manner affect the plain- ' tiff’s right to recover. The only effect of such evidence, it seems to us, would he to show what loss or injury the owners of these factories might sustain, if the business carried on hy them should be found to be a nuisance.

But that was not a question for the consideration of the jury. The law, in cases of this kind, will not undertake to balance the conveniences, or estimate the difference between the injury sustained hy the plaintiff, and the loss that may result to the defendant -from; having its trade and business, as now carried on, found to be a nuisance. No one has a right to erect works which are a nuisance to a neighboring owner, and then say he has expended large sums of money in the erection of his works, while the neighboring property is comparatively of little value. The neighboring owner is entitled to the reasonable and comfortable enjoyment of his property, and if his rights in this respect are invaded, he is entitled to tlie protection of the law, let the consequences he what they may. •

(Decided 12th December, 1890.)

Judgment affirmed.