Feldstein v. Kammauf

⁴⁸¹ Collins, J., delivered the opinion of the Court. This is an appeal from a decree of the Circuit Court for Allegany County directing the conduct of a scrap metal or junk yard. On June 14, 1955, the appellees, residents of LaVale, a suburb of the City of Cumberland, Allegany County, filed a supplemental bill of complaint asking that the respondent, appellant, Abraham Feldstein, be enjoined, restrained and prohibited from operating and maintaining a junk yard on premises owned by him and his sister, Anna Feldstein, in LaVale, and for other and further relief. After a hearing in open court the chancellor decreed: (1) that the appellant reduce and conceal from the view of all the residents of nearby property the amount of scrap and other materials deposited on his and his sister’s property; (2) that he not handle any material on said property whether by way of storage, removal, or reducing to smaller pieces between the hours of 9 P. M. and 7 A. M.; (3) that he not burn thereon anything so as to cause offensive smoke, fumes, or soot; (4) that he not block, or allow his customers to block, the county road leading to said property; (5) that he not allow rats or mice to congregate on said property; (6) that in the event he does not conceal the scrap and other materials, as aforesaid, he shall remove the same from said premises.

From that decree the appellant appeals. In this Court the appellant does not contest and is willing to abide by all of said decree except sections 1 and 6 aforesaid. He contends that he should not be required to conceal the scrap and other materials on his premises or to remove the same from the premises, which would result in the discontinuance of his business. The testimony taken in open court before the chancellor reveals the following facts.

There is no zoning in Allegany County and no restrictions in the deeds as to the use of the property in question here. LaVale is a suburb of the City of Cumberland and extends along the National Highway from a point about two miles west ⁴⁸² of Cumberland, a distance of about five miles to a mountain range. It lies along the National Highway, U. S. Route 40. It is traversed by a single track railroad and a small stream known as Braddock’s Run.

On account of the decline of coal mining in Allegany County the railroad line has recently been removed and scrapped west of the Feldstein property. Prior to prohibition the James Clark Distillery was located in LaVale next to the National Highway. A glass works is now located in one of the old distillery properties. Immediately east of this property is a meadow which is referred to as “the bottom”.

Rye Street extends along the west side of “the bottom”, and across the railroad into a residential area known as Braddock’s Farms where there are no commercial properties but several residences. Between the National Highway and appellant’s property are the homes of the Taylors, the Deals and the Kammaufs, complainants here, and the LaVale Fire Station, which is also used as a community hall and barber shop. An old distillery warehouse is located a short distance east of the Fire Station, which houses a completely enclosed body repair shop. South of the National Highway is a residential area except for a motel.

In the neighborhood are commercial and business properties. A gasoline service station, under which there is a bulk plant, is situated west of two glass plants. A roofing company warehouse. is located east of Rye Street and away from the National Highway. A flour packing warehouse is being built.

There are also two stores and a postoffice some distance east of appellant’s property. The remaining area is residential. In 1939 Mr. Feldstein, the appellant, purchased a part of this bottom land which ran approximately 350 feet along U. S. Route 40 and which varied in depth from 150 feet to 450 feet. The Western Maryland Railroad crossed this property from east to west on a sixty-six foot right of way.

Sewer lines ran from some of the residential properties under appellant’s land to an open ditch. At the time of appellant’s purchase the property ⁴⁸³ was improved by a large warehouse which had formerly been used for the storage of whiskey by Clark’s Distillery. The original complainants in this case, before they were joined in the supplemental bill by other neighbors in the vicinity, were Mr. and Mrs. Kammauf and Mr. and Mrs. Barb, who purchased their properties in 1947. At that time there was some junk stored on appellant’s land.

Many of the homes of the other complainants were built between 1946 and 1954. As soon as the appellant purchased the property in 1939 he started storing scrap metal, tanks and junk, and has made continuous use of this land for storage of junk and scrap which he hauled to and from the property by railroad cars and trailers. The appellees claim that before 1954 this material was largely concealed by vegetation. In 1954 Mr. Feldstein purchased, for over $100,000.00, the rails of the Western Maryland Railroad right of way.

Needing more storage space, in May, 1954, he purchased in his sister’s name the tract of land immediately south of and adjacent to his own which is referred to as “the bottom”. The two parcels, now owned by him and his sister and used by him, approximate seven acres, the total cost of which was $13,000.00. In 1954 appellant began storing the railroad rails on these properties. Mr. Malone, freight agent of the railroad, stated that some shipments of scrap were made to the property between 1939 and 1946.

In 1946 six carloads of scrap were either moved into or from appellant’s property. He stated that from 1946 to 1954 no shipments were made by rail to and from appellant’s property. The appellees claim that after the purchase of the additional property in 1954 storage began on a large scale. Junk and scrap metal were brought in and loaded and unloaded from and into railroad cars and trucks.

A large metal ball was used to shatter the metal by dropping it from a height of fifteen feet. Insulation was burned off wires. The yard contained barrels, rails, copper wiring, metal discs, drums and tanks. The appellees complain of the noise, the rats, the smoke, and ⁴⁸⁴ the blocking of the roads, the injunction against which is not contested by the appellant.

As the appellant does not contest any part of the decree other than the concealing of the scrap and other metals on the premises, and, as this contested part of the decree, if affirmed, will compel the appellant to discontinue his present business there, we will only consider whether he should be required to abide by the contested part of the decree on account of the unsightliness of his business. The appellees rely on the case of Meadowbrook Swimming Club, Inc. v. Albert, 178 Md. 641 , 197 A. 146 , where an injunction was issued against a noise nuisance coming from a large swimming pool. The appellant here does not question that part of the decree which requires him to avoid the night noises. This Court said in that case, which is pertinent here: “The rule which must control is whether the nuisance complained of will or does produce such a condition of things as in the judgment of reasonable men is naturally productive of actual physical discomfort to persons of ordinary sensibilities, tastes, and habits, such as in view of the circumstances of the case is unreasonable and in derogation of the rights of the party (Hamilton Corp. v. Julian, 130 Md. 597 , 101 A. 558 ; Woodyear v. Schaefer, 57 Md. 1, 12 ) subject to the qualification that it is not every inconvenience that will call forth the restraining power of a court.

The injury must be of such a character as to diminish materially the value of the property as a dwelling and seriously interfere with the ordinary comfort and enjoyment of it. Adams v. Michael, 38 Md. 123 ; Gallagher v. Flury, 99 Md. 181, 182 , 57 A. 672 ; Euler v. Sullivan, 75 Md. 616, 618 , 23 A. 845 .” See also Hart v. Wagner, 184 Md. 40 , 40 A. 2d 47 . The appellees rely strongly on the case of Fox v. Ewers, 195 Md. 650 , 75 A. 2d 357 . There, the defendant’s property had been used for a blacksmith shop previous to 1939.

After that time building equipment was placed on the lot and in 1947 the defendant had ⁴⁸⁵ seven asphalt distributors there which created pungent, gaseous, and nauseous odors. Much noise was made by the large tractors which disturbed the peace of the complainants’ homes and which made complainants’ lives very disagreeable. In affirming the granting of an injunction by the chancellor against the storing of asphalt equipment and trucks on the property and the causing of odors, fumes and noises, apparently the unpleasant sight of this equipment was not considered. Great reliance is placed by the appellees on the case of Parkersburg Builders Material Co. v. Barrack, 118 W. Va. 608 , 191 S. E. 368 , 192 S. E. 291 , 110 A. L. R. 1454.

There, the owners of property in the vicinity brought a suit to enjoin the defendant from using his ground for outdoor storage and wreckage of abandoned automobiles. The defendant had parked about one hundred and twenty old automobiles on the lot and it was his intention to place more there. The chancellor enjoined the defendant from using his property as a storage yard for old automobiles, and from dismantling automobiles thereon excent within an enclosed structure. On appeal the West Virginia Supreme Court of Appeals found that there were a few residences close by and several business establishments in several city blocks in the section of the city under consideration.

The residential properties amounted to ninety-six percentum of all the properties involved. This result was attained by including numerous properties not in the immediate