Cityco Realty Co. v. Mayor of Annapolis

Offutt, J., delivered the opinion of the Court. The City of Annapolis is situated on a peninsula, the-shores of which are washed by the waters of College Creek, on the north, by the Severn river and Spa Creek on the east, and by Spa Creek on the south. The terrain is moderately elevated and slopes irregularly from the State House, near the center of the city, to these waters, which are all estuaries or tidal rivers. Spa Creek runs from its source south of Annapolis in a northeasterly direction about one and one-fourth miles to itsjunetion with the Severn river, at which point it flows between Eastport and Annapolis. ¹⁵⁰ For many years, certainly since 1913 or 1914, the municipality has maintained outfall sewers through which sewage from that part of the city lying southwest of the Duke of 'Gloucester Street, which runs from College Creek to Eastport, has been collected and discharged into the waters of Spa Creek.

The present population of the city is said to be about twelve or fifteen thousand, and it is estimated that of that total six or seven thousand persons occupy that part of it served by these sewers. A part of the sewage from the United States Raval Academy, which lies immediately northeast of the city proper, as well as some from Eastport, and areas outside the municipal limits, is also discharged into Spa Creek, and the volume gathered from these several sources and discharged into those waters is said to be nearly 1,300,000 gallons per day. The creek itself is from two to five hundred feet or more in width, in places it has a depth of from fourteen to sixteen feet, and the rise and fall of the tide in it is from two and one-half to three feet. The pollution of its waters as a result of these conditions has long been recognized as a possible menace to the public health, and in 1912 or 1913 the Maryland State Department of Health made a complete survey of the situation for the purpose of formulating some system of disposal, by which all the sewage of the city could be gathered, conducted through a disposal plant, and so far purified and disinfected that the effluent could be discharged into adjacent waters without of-fence to the senses or danger to the public health.

Following that survey, the Legislature, by Chapter 818 of the Acts of 1914, authorized the Mayor, Counselor and Aldermen of the City of Annapolis to construct a sewerage disposal plant, and to borrow on the faith and credit of the city $50,000 to defray the cost of its construction, provided the Mayor, Counselor and Aldermen of the City of Annapolis enacted an ordinance approving the loan, and such ordinance was ratified by a majority of the voters, voting at an election to be called for the purpose of passing on that question. Rothing appears to have been done under that act, and in 1920 another statute, Chapter 180 of the Acts of 1920, was ¹⁵¹ passed. That act, after reciting in its preamble that: “Whereas, The State of Maryland, the City of Annapolis and the United States Naval Academy and other government property at Annapolis under the provisions of Chapter 777 of the Acts of 1914 of the General Assembly of Maryland contemplated taking steps to rid the waters of the Severn River and creeks adjacent to Annapolis of the filth and pest of the sewage entering into the same,” provided for the appointment of a commission to perfect plans for the disposal of such sewage. A commission was appointed in accordance with the act, and it reported its finding and conclusions to the Legislature in 1922, but no action in connection with its report was taken.

Chapter 777 of the Acts of 1914, referred to in the preamble of chapter 180, supra, recites that: “Whereas, The United States Department of Agriculture, through its Bureau of Chemistry, and acting in connection with the Hygienic Laboratory of the Treasury Department, has recently been conducting an investigation of all of the oyster beds of the Chesapeake Bay and its tributaries, as a result of which investigation it has been announced by the said Department of Agriculture that the Severn River is very badly polluted, which pollution is directly attributable to the dumping of sewage from Annapolis and the United States Naval Academy and vicinity into said river; and “Whereas, The said Department of Agriculture has ruled as a result of this investigation that all oysters taken from Severn River should be transplanted in non-polluted waters before offering for shipment, so as to escape liability under the Pure Pood and Drugs Act, June 30, 1908; and “Whereas, The said pollution is a direct and serious menace to the health of the inhabitants of Annapolis and vicinity, as well as being objectionable on account of the interstate shipment of oysters from this locality; and “Whereas, The State of Maryland, through its large property holdings in the City of Annapolis, largely ¹⁵² contributes to the objectionable conditions aforesaid through its use of the sewers of said city; and “Whereas, The United States Government, through its institution at the Naval Academy, also largely contributes to the cause of said pollution of said Severn River, and also the said City of Annapolis, and have inaugurated a movement to remedy said conditions by construction of a sewerage disposal plant.” From 1922 to 1926 the question of sewage disposal in the City of Annapolis remained in abeyance for the ascribed reason that during that period the city was engaged in installing at a cost of some $300,000 a new water system, but in 1927, by an agreement between the Mayor and Counselor of the City of Annapolis and the State Department of Health, legislation looking to the establishment of some adequate and safe system of sewerage disposal in the City of Annapolis was submitted to the Legislature, but no action taken as to it. The Legislature did however, by chapter 641 of the Acts of 1927, empower any governing body of any city or town in the state to establish and maintain sewerage disposal systems, and to secure funds therefor by issuing bonds in any ■amount not exceeding five per cent, of the assessed valuation ■of all property listed and assessed in any city or town proceeding under the act. Sewerage conditions in the City of Annapolis were in that ¡state when, on April 25th, 1927, the Cityco Realty Company ■ ¡acquired by deed from Samuel Bealmear seventy acres of land lying east of the Ferry Point Road, and binding on the ¡south and west sides of the upper part of Spa Creek, and it later acquired another tract of seventy acres lying east and ■south of the first tract and adjoining it. The company at once subdivided the first, tract, known as “Silopanna,” into building lots, many of which fronted on Spa Creek, and improved it by removing trees and undergrowth, establishing roads, grading the land, and erecting several houses.

The apparent purpose of the Cityco Realty Company in acquiring the land was to sell it off in building lots, but it contends that, ¹⁵³ when it attempted to dispose of its lots, it found that the polluted condition of Spa Creek made them practically unsalable. It therefore, on September 21st, 1928, filed the bill of complaint in this case against the Mayor, Counselor and Aldermen of the City of Annapolis, in which it alleged that the defendant daily discharged into' Spa Creek large quantities of sewage, “which condition breeds flies and mosquitoes,, and the smell and stenches from said sewage and said sewers, particularly when the wind is blowing from the east, turns the stomach, of people who cannot eat their meals in comfort, it impairs their health and makes it impossible to interest the public in the purchase of said lots bought to sell, as aforesaid; and therefore it is impossible to sell or dispose of said property as was contemplated when it was bought by your orator.” It further alleged that formerly the waters of that creek were fit for bathing, unpolluted and potable, but that now since the “defendant’s wrongs,” they “have become discolored with vegetable and animal matter and with the refuse of kitchens, waste water from bath rooms and sinks, and overflow from cess pools; and the waters of said creek are now covered with an obnoxious green scum and the banks of the same marked with deposits of an obnoxious nature and said Spa Creek gives off a foul and disagreeable odor, especially in periods of dry weather, so that the waters of said Spa Creek are no longer fit or safe to drink, bathe in, swim in or boat upon,” and it prayed that the defendant be enjoined from discharging any part of its sewage into “the said Spa Creek.” The defendant in its answer admitted that it discharged sewage into Spa Creek through sewers constructed by it, but alleged that they were established by competent authority, were properly constructed, that they discharged into tide water, and were for the “benefit of sanitation, health and comfort of the population of Annapolis, and adjacent territory.” It denied that the waters of Spa Creek ever were potable, and denied that it was responsible for their present polluted condition, but asserted that its present condition was due to ¹⁵⁴ natural causes. Issue was joined on those pleadings, testimony taken, the case heard, and, after the hearing, the chancellor on September 19th, 1929, filed a decree dismissing the bill with costs to the defendants. This appeal is from that decree.

Without attempting to analyze it in detail, it suffices to say that it appears from the testimony that the waters of Spa Creek are heavily polluted, that the count of intestinal bacteria in them is abnormally high, that their condition does constitute a menace to the public health, and that the City of Annapolis contributes largely to that result. These facts are not only established by the testimony, but they are so patent and notorious that the General Assembly of the State has on two occasions solemnly asserted that they exist. It also appears that there has been no physical invasion of the appellant’s property by the deposit on it of silt, sludge, or any offensive or noxious matter, that can be traced to the appellee; that the waters of Spa Creek are tidal waters and that the appellant has no proprietary interest in them; and that while they are polluted by the discharge of sewage into them!, that the pollution is of such a character that it does not necessarily create noxious or offensive odors, fumes or gases, although it may be inferred that they do at times give off noticeable and offensive odors. One witness, a salesman for the appellant, testified that he had noticed such odors, another, Abel Wolman, chief engineer of the State Department of Health, said that the decomposition of the sewage deposits would at certain seasons of the year produce gases, primarily hydrogen sulphide, which would give off objectionable odors, and that he had actually noticed such odors.

On the other hand two witnesses, one the city commissioner and the other the health officer for Annapolis, testified that, although they were familiar with the waters of Spa Creek and had often been on them, they had never noticed any offensive odors or smells. It is, however, consistent with reason and experience that the discharge of over one and one-fourth million gallons of raw sewage per day into the waters of a small landlocked estuary, such as Spa Creek, will not only pollute its ¹⁵⁵ waters, but that it will likely cause offensive odors in warm weather. It also appears that the conditions of which it complains existed long before the appellant bought the land which it is now developing, and there is nothing in the record to indicate that the value of that land is any less at this time than it was when appellant bought it. It may also be inferred that, while the effect of the condition of Spa Creek on the salability of the land in lots for residential purposes may be very severe, yet when appellant bought the land it was in a single tract, and the plan of subdividing it and selling it off in building lots originated with it.

In other words, the appellant bought undeveloped rural property binding in part on these polluted waters, and presumably received in the amount of the purchase price the benefit of any diminution in the value of the property due to the alleged nuisance which it seeks in this proceeding to abate. And while there is nothing objectionable in such a course, nevertheless these circumstances have a definite tangible weight and significance, in weighing the relative equities of the parties to this proceeding to determine whether appellant is entitled to the harsh and drastic remedy sought in this case. Yeither the alleged nuisance, nor the conditions which produce it, are of sudden growth, but they have resulted in part from efforts on the part of the municipality extending