Bonaparte v. Denmead

Pearce, J., delivered the opinion of the Court. The appellant, as trustee under the will of Walter R. Abell, deceased, is in possession and control of a parcel of land at the northwest corner of Charles street and Lafayette avenue in the city of Baltimore, running back to an alley paralled with Charles street, and known as Morton alley, upon which has been erected a large and costly building, designed for and now used and occupied as an apartment house, and known as “The Walbert Apartment House. ” Among these apartments are eight fronting on Morton alley, alleged by the bill to be among the largest and most valuable of the apartments contained in said building, for each of which eight apartments the plaintiff has been asking, and in some cases receiving, a rental of between $900 and $1,000 per annum. On the west side of Morton alley and on the north side of another small alley leading west from Morton alley, is a two-story brick building, formerly used as a private stable connected with the residence of Talbott Denmead, deceased, but now owned by Carrie Denmead, trustee for Helen B. Gelston, and occupied by the Chesapeake Company, a corporation, as a stable for the use of its 18 horses employed in the business of selling and delivering coal in the city of Baltimore. The bill was filed in December, 1906, and alleges that ever since the commencement of warm weather in that year, this stable has been, a source of annoyance and discomfort to the occupants of The Walbert and especially to those whose apartments open on said alley, and are located opposite, and near to said stable; that this discomfort and annoyance has been in part due to the filthy and unsanitary condition of the said stable and premises, and in part to the noise and uproar caused by taking out the horses in the morning, interrupting the sleep of the occupants of The Walbert, and the similar disturbance caused by the return of the horses in the evening, and by the boisterous and offensive language and conduct of the men in charge of said horses; that the tenants of The Wal ¹⁷⁶ bert have become alarmed lest their health should suffer by-reason of the unsanitary condition of said stable, and also fear that their lives and property may be endangered by fire due to the careless supervision of this stable; that a fire did occur recently because of carelessness in supervision, and that no attempt has been made by any of the defendants to maintain order on the premises, or to prevent them from becoming a nuisance to the neighbors.

The bill further alleges that the plaintiff has received numerous complaints from the tenants of The Walbert urging him to have the nuisance abated; that he has applied to the Police and Health Department of the city, but has secured thereby only imperfect and temporay relief; that by reason of the situation, one of his tenants removed from The Walbert at the end of his tenancy, and another gave up his apartment on Morton alley, and took another in a different part of the building, at a lower rent, and others have threatened to remove from the apartments on the west side of the building, and he is apprehensive of grave and irreparable loss to the trust estate as a result of the situátion; that whatever knowledge the individual defendants, Carrie Denmead, and Helen D. Gelston, may have had of the use to which said stable would be put when they originally allowed its occupation as a stable by the corporate defendant, they are now fully aware it cannot be used and maintained as charged without becoming a nuisance to the occupants of The Walbert, and that they are therefore now equally responsible as the corporate defendant for said nuisance. The bill then prays that each of the said defendants may be temporarily, as well as permanently, enjoined from so using the said premises, or causing or permitting the use thereof, or, leasing or renting, or receiving rent therefrom, with the purpose and intention that they should be so used as to cause annoyance, discomfort, or injury, or the danger or reasonable fear thereof, to the tenants or other lawful occupants of The Walbert, by reason of any of the things therein charged as caused by the said use of the said stable. ¹⁷⁷ Carrie Denmead and Helen D. Gelston answering, alleged that the stable in question was occupied for about ten years after the death of Talbott Denmead in 1876, as a livery stable, then for about 15 years as a stable for a number of horses, and later as a blacksmith shop and stable until 1904, when it was leased for one year from February 15th, 1904, to the Chesapeake Company, which lease was renew’ed until February 14th, 1906, when a new lease was made at an increased rent ($360 a year) for one year from February 14th, 1906, and that it is now occupied as alleged in the bill. They allege that the locality in question had been long used for stables, one being on the site of The Walbert before its erection; that they had legal right to lease the premises in question for a stable; that the Security Company has a large stable near by, and there are other stables in the same block; that the inconvenience and annoyance caused by the use of said premises as a stable are only such as are ordinarily caused by any stable of that kind; that they were not a nuisance when leased to the Chesapeake Company, and that if they have since become so, they are in no way liable therefor, and are not proper parties to the suit. They further allege that when the plaintiff planned and erected The Walbert, he was fully aware that Morton alley had long been used and occupied for stables and other similar purposes, and that such stables have the right to exist in cities, and that he is in fact complaining of the legitimate use of said premises for a purpose indispensable in a large city.

The defendant corporation, answering, says that at first the-manure from the stable was dumped into a pit on Morton alley, but this being complained of, the pit was abandoned and the manure was dumped on a vacant lot north of the stable; that afterwards it joined with the landlord, under the direction of the building inspector, in the erection of a tight wood and iron shed on Morton alley, and the manure is now taken through a door in the stable and deposited in this shed, from which it is at proper times removed, and that since this arrangement, the health inspector has told the defendant’s ¹⁷⁸ president the only complaints were about the odor of the manure when being removed, and that the management of this stable was of the best, and he had no suggestion to make in the matter. It alleged that the carts used by the company are kept at the yard where the horses are taken from the stable in the morning and are attached to them; that the defendant’s president, at least five days in the week, goes personally in the morning to supervise the work at the stable, before seven o’clock, and had never heard any boisterous or profane language from the men, but on,complaint had ordered it should not occur, and had requested the police to watch the premises morning and evening to prevent any cause of complaint, and that every precaution was taken against fire. Over 125 printed pages of testimony were taken, and upon hearing, the Circuit Court dismissed the bill, saying as "to the owners, that it was clear Carrie Denmead had a right to rent the property for a stable, and that as lessor she could not be held liable for any cause of complaint growing out of the manner of its maintenance by the lessee, and saying as to the defendant corporation, that it was sufficient to say that no act • or omission had been shown on its part which calls for the extraordinary remedy of injunction, and that the plaintiff should be left to the remedy at law, if any. Seventeen witnesses were called by the plaintiff of whom ten were women and seven were men: Mr. Mullikin occupied apartments on the first floor facing on Morton alley.

He said “I have suffered inconvenience from the odor of the stable and the noise of the men. ” When asked to state the extent of the inconvenience from the odor, he said “Well it is more or less the odor which I presume would be the odor from a stable which comes into the apartment, and I make it a rule to ventilate the apartment from the court side.” When asked if he had complained to the landlord or his agent about the stable, he said, “I may have made a complaint just casually, that the stable was objectionable, but no written complaint.” Daniel F. Brown occupied apartments on the second floor on Morton alley. He said the stable men indulged in much ¹⁷⁹ loud talk and some profanity and that there was an unbearable stench from the stable. He was there one year, and in November, 1906, moved to the Marlborough. His wife was not well and he had to look for other apartments.

Dr. Evans occupied apartments on fifth floor on Morton alley. The odor from the stable was so marked, they could not tolerate it, and they changed to the sixth floor, with little or no improvement. He took a lease on that floor for a year from February 1st, 1907, after being on that floor from the previous September. Mr. Tabb occupied apartments on the second floor opening on the Court in the rear of the building, but not on Morton alley.

He said in warm weather the stable odor was terrific. This witness referred to a number of colored houses near, which, he said, were filthy and unhealthy, and which he said the health department should take down, and said the only thing to cause the odor was the stable and those colored houses nearby. Dr. Townsend, in January, 1907, health warden of the 12th ward, testified that complaint was made to him at that time of a nuisance at 1802 Morton alley, being the defendant’s stabie; that he found the alley very dirty and piled up with ice and that he noticed the ammonia smell that comes from a stable or from manure. He said there was another stable further up the alley, and he serft notices to all persons using or owning stables on that alley, to clean up.

That he returned a few days later and found manure piled up thirty or forty feet high against the stable further up the alley, and a stream of dirty water flowing from it down the alley on the Walbert side. He said the ammonia smell from a stable is stimulating, and not altogether pleasant, but would not say it was unhealthy. Thos. Kimmit, the engineer at the Walbert, testified, “All the discomfort I know is, that the alley gets blocked up whenever a heavy rain comes and the manure pit there flows over.

The water rushes down on the Walbert side, and overflows the engine room 20 feet below the alley. It is a ¹⁸⁰ great place for rats and they are killed and thrown out in the alley, and it makes a terrible odor there; the ladies up stairs can’t stand it. The most of the water, I think, comes from piles of snow in.the back yards, and from that manure pit.” Mr. Manning, the secretary of the plaintiff, said the building was first occupied in December, 1904, and that there were continuous complaints from the occupants as to this stable since the spring of 1905; that Mr. Brown gave up his apartments on that ground alone; that Dr. Evans said he thought seriously of doing so, and Miss Pue says she will have to leave at the end of her tenancy, and that Dr. Evans’ rent was reduced $50 per annum in order to retain him. Miss Gallagher, superintendent of the Walbert, occupies a first floor room on Morton alley.

The stable is just across the alley. She said the odor is overpowering at night. “I think the stable is badly kept. I think a stable that shelters twenty-one horses is bound to be an objectionable place.” Miss Pue said ‘‘the odor is unbearable. I cannot stay here in spring and summer.

It is impossible.” » ■ Mrs. Welsh said there was a most disagreeable odor, especially at night, and the noise in the early morning was very disturbing. Mrs. Dr. Evans said there was a great deal of odor and sometimes at night she was obliged to get up and close the windows; that the alley was not. kept dirty, but there are fumes coming from it. That she did not know until recently that there was another stable further up the alley, and cannot say what it has to do with the odor. Mrs. Loflin, Mrs. Hunter, Mrs. King aad Mrs. Dixon, all on different floors on this alley, say the odor is very disagreeable.

Mrs. Dixon could not say whether there was any cessation of odor after the stable was burned in the summer of 1906 and before it was rebuilt and reoccupied. She also said the odor was not so objectionable as to induce her to move, and that she could not say she would not have taken the apartment if she had known of this stable; that she believed the people tried to keep the stable clean, but that the odor ¹⁸¹ from a stable is always bad even when the stable is clean; and that while disagreeable it is not unhealthy. Miss Barclay said, “there was considerable odor from the stable, but a stable odor is a stable odor,” and also said she would not change her apartment on eighth floor corner of Morton alley, for any other in the building. We will now examine the defendants’ testimony.

Wm. H. Waesche, president of the Chesapeake Company, testified that the company had occupied the stable four years; that every morning, immediately after the horses are fed, the stable man removes the manure and puts it in the covered iron shed, that the stalls are thoroughly cleaned out and finally washed out, the water running into a sewer near the door; that the horses are bedded with long rye straw which practically absorbs all the urine; that no urine flows from the stable into the alley, and has not done so except on one or two occasions when the sewer was choked; that in the winter season the manure shed or pit is emptied twice a week, and at other seasons every other day, because there would not be a full load to remove every day, and that they pay 25 cents a load for its removal except in winter; here are nine drivers and one stable man; the wagons are kept at the coal yard; the horses are taken down to the yard a little before seven and return to the stable between six and seven in the evening; that he gives personal supervision to the stable, both morning and evening, and has requested police to see that the men are not boisterous or profane; that no portable lights are used in the stable, one large stationary light with reflector being sufficient for all purposes, and that no smoking is allowed on the premises; and that he kno.ws of nothing that could be done to remove the objections made against the stable; that before The Walbert was erected the manure