Wallis v. Bateman

2 Balt. C. Rep. 504

• Court: Baltimore City Circuit Court
• Decided: December 16, 1907
• Status: Published

Opinion

ELLIOTT, J.—

The bill in this ease has been filed by the plaintiffs, asking an injunction to prevent the defendant from allowing the escape from her premises of certain smoke and gas alleged to have been generated by the furnace in defendant’s cellar and to have escaped from the flue in the house of defendant into the room or rooms of plaintiffs’ dwelling.

A careful perusal of the testimony taken in this cause has not satisfied me that the trouble complained of has arisen through any negligence on the part of defendant, or from any conditions, for the existence of which she can reasonably be held responsible. It seems rather to be another illustration of the defective buildings which we have reason to believe are not confined to any particular section of our city, and it furnished a sad commentary upon the greed and that lack of good faith which have too frequently characterized building enterprises in Baltimore.

The fact is, however, that the same condition of affairs which is alleged to exist so far as the wall between the houses of plaintiffs and defendant is concerned doubtless exist in the wall between plaintiff’s house and the house adjoining on the other side, and the uncertainty in this case arises from the fact that no sufficient or adequate examination of the wall was made so as to determine the real cause of the trouble.

It is true that the failure to make such an examination was attempted to be excused on tile ground that it would be very expensive. Even if based on facts, this does not justify this court in permitting a surmise to take the place of knowledge, or to impose upon the defendant the burden of doing a thing which might not remedy the trouble by doing away with the cause of it.

I shall therefore dismiss the plaintiffs’ bill with costs.