Block v. Mayor of Baltimore

Ofeutt, J., delivered the opinion of the Court. On or about July 27th, 1921, the Mayor and City Council of Baltimore, hereinafter referred to as the city, contracted with the Sanitary Reduction Company, a corporation, for the disposal, by the Arnold Egerton system of reduction, of all 'garbage produced in Baltimore City, which, under the contract, the city agreed to deliver on scows at the redaction company’s plant at Spit Point on Bodkin Creek in.Anne Arundel County. After the execution of that contract and until this suit, the city transported its.garbage on scows to the reduction company’s plant, where it was converted by that company into oils, grease, tankage and other products. On June 2nd, 1924, John and Lucy Block, and others occupying as tenants or owners forty-four different tracts of land located at ⁴³ distances varying from two hundred yards to several miles from Spit Point, filed in the Circuit Court for Anne Arundel County, in equity, their bill of complaint against the reduction company, in which they complained that the manner in which the garbage produced in the City of Baltimore was transported to Spit Point and there reduced caused a nuisance which affected them in the comfortable enjoyment of their respective properties, and in which they prayed that an injunction issue restraining the reduction company from continuing the nuisance.

A demurrer to that bill was sustained, and with the leave of the court it was amended, making the city a party defendant. Demurrers filed to the amended bill were also sustained, and the bill dismissed, and fiom that order this appeal was taken. The most important question presented by the appeal, in so far as the actual and substantial rights and privileges of the parties are concerned, is whether the allegations of the amended bill make out a case for equitable relief, although, so far as the immediate litigation is concerned, the form of the pleadings raising that question is quite as important. Whilst, in the view we take of the case, the appeal might be disposed of on the objections, to the form of the pleadings, yet since the conditions complained of are continuing in character and as the dismissal of the bill in this ease ought not to prejudice the right of the complainant to seek relief in any other proceeding involving the same1 facts, we feel that we should pass upon both questions, and we will therefore deal with them in the order in which they have been stated.

To understand the significance of the objections urged both to the formal sufficiency of the pleadings and to. the right of the appellants to equitable relief upon the case made out by the bill, it is necessary to refer at some length to the bill, the accompanying affidavits, and the exhibits filed with it. .The amended bill, which is filed against both the city and the reduction company, contains fourteen paragraphs. The first paragraph alleges that all the plaintiffs, own or lease ⁴⁴ property in close proximity to Spit Point, where the reduction company is engaged in the business of receiving and reducing garbage and dead animals for profit. The second a.nd third paragraphs set out in some detail the location and use of the several properties occupied by the plaintiffs and their respective interests therein. The fourth alleges the execution of the contract between the city and the reduction company and states the terms thereof.

The fifth' charges: “That as the garbage and dead animals are collected in different parts of the City of Baltimore it is put on board scows, holding from 175 to 250 tons each, located at one or more' points in said city. When the scow becomes filled it is transported, at the expense of Baltimore City, to the reduction company’s plant at Spit Point. The exact number of scows of garbage and dead animals received by the reduction company at Spit Point is not definitely known to your orators, but your orators show that at least one scow each day, and sometimes two scows a day, filled with garbage and dead animals, are sent to the reduction company’s plant. The scows, while being filled in Baltimore, during transportation to, and while being unloaded at, the reduction company’s plant, are open and uncovered, and exposed to the air and sun, during which time large numbers of flies and other insects gather, feed on the garbage and dead animals, and propagate in great numbers, and are brought to your orators’ property and homes.” The sixth describes the process by which the garbage and dead animals are “converted” or “reduced.” The seventh alleges: “That during the time the scows are being loaded in Baltimore City the mass of garbage and dead animals attracts large quantities of flies which feed on said garbage and propagate and remain with the scow until the contents thereof are unloaded at Spit Point.

Most of the flies then disperse and come to the homes of your orators and the homes of other persons in ⁴⁵ the vicinity of Spit Point. Yonr orators are unable to adequately state the number of flies that are brought to their homes in this way, but some idea can be gotten as to the number of flies from the fact, which your orators now aver, that frequently the number of flies on said scows as they are brought down the bay to Spit Point are so numerous and dense that they have the appearance of a cloud of smoke over and following the scow. Your orators further show that the refuse accumulated around the defendant’s plant is also a breeding place for myriads of flies. All of the aforementioned flies swarm in droves throughout the neighborhood, cover the beasts of the field and interfere with the work and management of the same, penetrate the homes of your orators who live within two or three miles of- the reduction company’s plant, notwithstanding the fact that doors and windows are screened, and cover the food on the tables and in the kitchens and pantries of your orators’ homes.

Especially during warm weather, as the scows are not covered, the decomposing garbage and dead animals get into such condition that millions of maggots are created and at least one variety of the flies (hereafter called maggot flies) feed on these maggots. Your orators further show that the flies in their community have greatly increased since the reduction company’s plant has been in operation, which your orators have been informed, and therefore believe and aver, began operating on or about December 1, 1921, and that said increase is directly due to the garbage and dead animals transported by Baltimore City to and received by the reduction company at its plant. That said flies, come into the homes of your orators and swarm upon the food upon their tables, said maggot flies depositing maggots on said food and rendering the same most-nauseating to those about to partake thereof and making it absolutely unfit for human beings of ordinary sensibilities; that your orators are advised and believe and therefore aver, that said flies are carriers of disease and that their presence in the homes of your orators, after said flies have fed on the garbage and ⁴⁶ refuse on said scows and in and about the reduction company’s plant, is apt to promote disease and epidemics of disease in the homes of your orators and in the community generally.” The eighth avers that the operation of its plant by the reduction company results in the discharge of large quantities of poisonous liquids, oil and decomposed matter into the waters of Bodkin Greek, which “has absolutely ruined the waters of Bodkin Creek for all useful purposes and purposes of pleasure for which your orators, living thereon, have used the same. A large part of the surface of said waters is covered by a thick oily slime, the waters have become discolored and the poisonous gases and liquids and decomposed matter which the said reduction company deposits into said waters has caused fermentation and frequently the waters of said Bodkin Creek at various places in the vicinity of the reduction company’s plant are seen to spout up or boil or bubbles form thereon, due to fermentation of the matter on the bottom of said creek which your orators charge is caused by the pollution of said waters by the poisonous gases, liquids, and decayed garbage and dead animals which are deposited therein by the reduction company.” And it further alleges that as a result of these conditions the shores of the properties of those of the plaintiffs who own land on Bodkin Creek are covered with an oily slime, and that it is impossible for the plaintiffs to boat, swim or fish in said waters, or to use them to keep fish or crabs alive in '“live boxes” therein. ' The ninth paragraph states: “that the odors from the reduction company’s plant, especially the odor which emanates from the stack into which the steam and dust escapes from the tank-age as it is being dried, is a horrible nauseating stench which, on damp and still days, permeates the atmosphere in all directions within a radius of three to five miles of the reduction company’s plant and on ⁴⁷ clear days, when a wind or breeze is blowing, travels for a like or even greater distance, that on damp and still (clear or cloudy) days, and this is very frequently, the odor passes from the reduction company’s plant in the form of a fog which is so thick and so large in volume that persons using the public roads within a large radius of the reduction company’s plant and over which said fog has settled are required to light the lights of their automobiles in the day time in order to see their way; that said odor is and has been of such a character and degree that it is impossible for any person possessed of ordinary sensibilities, tastes, habits and refinement to live in a radius of three to five miles of the reduction company’s plant without actual physical discomfort and inconvenience; that said odor is so intensely sickening and disagreeable that many of your orators find it necessary to keep the windows of their homes closed for days at a time and even then it gets into your orators’ houses; that the gases which are a part of said odor irritate the throats of your orators and cause their eyes to burn or smart, and frequently after your orators have retired for the night, they have been awakened from sound sleep by the suffocating effect of said odor and gases and have been unable to get to sleep again, thereby causing considerable loss of sleep to your orators; that said odor is so nauseating that, it turns the stomachs of persons of ordinary sensibilities and makes it impossible for your orators to eat their meals in comfort or at times to eat such meals at all.

That on clear days when the wind or breeze is blowing briskly, except as to those of your orators who live very close to the reduction company’s plant and who are always subjected to said odor, the odor only affects those of your orators who are located in a, direction from the reduction company’s plant from which the wind is' blowing; that said odor and gases are such that actual physical discomfort is caused to your orators in the ways above stated and the health of your orators and members of their families are gradually being impaired.” ⁴⁸ The tenth states that the conditions complained of are practically continuous. The eleventh charges that these conditions subject the plaintiffs to great annoyance and physical discomfort, impair their health, depreciate the value of their property, and hinder the sale thereof. .The twelfth alleges that methods exist by which the garbage can be disposed of without inconvenience, annoyance or discomfort to others. The thirteenth avers that the County Commissioners of Anne Arundel County appointed a committee to inspect the plant of the reduction company, and that that committee reported that it was a nuisance, a menace to the health and comfort of the residents of the surrounding country, and should be abated. The fourteenth alleges that the plaintiffs have no adequate remedy or redress at law.

The bill then asks for the following relief: “1. That the defendant, the Mayor and City Council of Baltimore, be temporarily and permanently prohibited and enjoined from sending or bringing from Baltimore City to Spit Point or into Bodkin, Creek any scows or open boats containing garbage or dead animals unless the scows are fully covered at - the time they leave the dock at Baltimore City and remain covered until received by the defendant, The Sanitary Reduction Company, so that the contents of said scows or open boats will not be exposed to flies or other insects. “2. That the defendant, The Sanitary Reduction Company, be temporarily and permanently restrained and enjoined from receiving any scows or open boats containing garbage or dead animals from the Mayor and City Council, of Baltimore unless said scows or open boats are covered so that the contents will not be exposed to flies or other insects and that said The Sanitary Reduction Company be required to keep said scows or open boats covered as aforesaid until it starts to unload the same. “3. That the defendant, The Sanitary Reduction Company, be temporarily and permanently restrained and enjoined from disseminating disagreeable odors, ⁴⁹ gases and stenches as herein alleged by the operation of a dryer or by any other means which may produce similar results. “4.

Thai- the defendant, The Sanitary Reduction Company, be temporarily and permanently restrained and enjoined from emptying into the waters of Bodkin Creek any solid matter and any liquids and gases dangerous to fish and crab life and from polluting the waters of said Bodkin Creek as herein alleged. “5. And for such other and further relief as the nature of your orators’ case may require.” There are two affidavits- attached to the bill, one of John E. Shipley, who verifies one sub-paragraph of paragraph two, paragraphs seven, eight, nine, ten and thirteen and part of eleven; and one of John Block, who' verifies onei sub-paragraph of paragraph two, and paragraphs five, seven, eight, nine, ten and thirteen and parts of paragraphs six and seven. The specifications embodied in the reduction company’s bid, and forming a part of the contract referred to in the bill, a copy of which was filed with it as an exhibit, contain the following clauses, which are to some extent relevant to the questions before us : “The City of Baltimore produces daily, considerable quantities of garbage and dead animals. These wastes are now being collected by city forces, hauled by them to dumping stations on the water front near the center of the city and thence removed by city owned scows to a disposal site on the Patapsco River.

The city intends to continue the collection of these wastes by city forces, but to dispose of them by contract. “The city proposes to deliver the wastes to a contractor either— “(a) By water on the city scows alongside of wharf within reasonable towing distance of the present city water front dumping stations. * * * “Wherever the term ‘garbage’ is used in this contract, it shall be liberally construed and shall be taken to include every accumulation of animals, fruit or vegetable food waste, containing not more than five ⁵⁰ per cent by weight of other refuse, generated by or resulting from the decay, deterioration, storage, preparation or handling of animal and vegetable matter in any place or at any point where food is prepared for human consumption, including all kitchen and dining-room refuse produced by households, hotels, restaurants, lunch -rooms, clubs, hospitals or any other-source whatsoever existing in the City of Baltimore,, Maryland. * * * “All receptacles, vehicles, scows and conveyances used by the contractor shall be so constructed and loaded as to prevent tbe garbage or any part thereof from falling upon or into and defiling or polluting-the streets, roads or waters, upon which the garbage-is transported or adjacent to the dumping stations and such receptacles, vehicles, scows and conveyances shall, be kept and maintained in a clean and sanitary condition to tbe satisfaction of the Commissioner of Street Cleaning. All receptacles, vehicles, scows and conveyances used by tbe contractor in the transportation of garbage from all sources and dead animals shall he covered with covers so arranged as to completely enclose, during transportation, the materials that maybe loaded thereon. * * * “The intent 'of the contract and specifications is to provide for the reception, transportation, removal and final disposition by tbe contractor in a sanitary manner so as not to create a nuisance or violate any law,, ordinance or regulation of the City of Baltimore or State of Maryland, of all garbage, dead animals and market refuse, and if so proposed in his hid, of all' rubbish, exclusive of ashes, produced by the City of Baltimore and delivered to the contractor by the city. * * * “In case the contractor makes final disposition of said garbage and dead animals at a plant located on the Patapsco River or its tributaries within thirteen-nautical miles by water of the Lazaretto Light House, to which delivery of said garbage and dead animals-may be made by scows, then the city will deliver said garbage and dead animals cn scows alongside of the: ⁵¹ wharf at the disposal plant of the contractor. The contractor shall unload the scows promptly and have them ready for removal within twelve hours after their delivery at the wharf, but in the unloading time of twelve hours, the interval between sunset and sunrise will not be counted. * * * “All garbage and dead animals'produced within the limits of the Oity of Baltimore shall be so bandied and disposed of at the contractor’s plant, as to prevent the creation of offensive odors of any kind while being bandied, treated or reduced. The process, machinery and apparatus shall be thoroughly sanitary in effect, and the plant shall be so constructed as not to cause conditions which will be detrimental to the public health or comfort, or in any way constitute a public nuisance. * * * “All water flowing from the plant shall be inoffensive and free from nuisance or any matter detrimental to the public health or to the oyster beds of fish life-in the Chesapeake Bay or its tributaries. * * * “The buildings and approaches shall at all times be kept in a clean and sanitary condition.

All gases of combustion shall be completely oxidized before their release into the air. Combustion shall be rapid and complete, insuring at all times and seasons the reduction of all materials to a mineral ash free from organic matter.” It is -obvious from this statement of its contents that the bill contains some allegations which properly have no place in it, and that it lacks others which it should contain, but nevertheless, if we assume, as the demurrer requires us to do, that the facts alleged in it exist, it would be a reproach to the law if it afforded to the plaintiffs no adequate relief from the burdensome and intolerable conditions shown by those facts. Those conditions, in our opinion, constitute an actionable nuisance (North. Cent.

Rwy. Co. v. Oldenburg & Kelley, 122 Md. 244 ), but the appellees contend that while the appellants may upon a proper showing recover in an action at ⁵² law for the damages suffered by them in consequence of that nuisance, its continuance cannot be enjoined because it has been sanctioned by the Legislature. That contention appears to be based upon the proposition that the city was