Five Oaks Corp. v. Gathmann

Marbury, C. J., delivered the opinion of the Court. The appellees, four husbands and their wives, owning and occupying residences in Catonsville, Baltimore County, filed their bill of complaint against the appellant corporation, which, less than a year previously had acquired an existing public swimming pool and restaurant on the Frederick Road, near the property of the appellees. It was alleged that since the appellant began to operate the business, it had caused glaring lights, to cast their ³⁵¹ beams into the dwelling houses of the appellees, necessitating the drawing down of window blinds, which, in the summer months, interfered with the free passage of air. Also that it had caused the restaurant to remain open 24 hours each day, and had permitted nickelodeons (a kind of mechanical so called musical instrument, operated by the insertion of a coin) to be made available for the use of the patrons, two of them in the open, and one in the restaurant, which in the summer is an open-air building.

That the playing of these nickelodeons prevented the appellees from enjoying their homes and their rest. It further alleged that the appellant, on the parking lot, furnishes car service to parked automobiles, particularly on Friday, Saturday and Sunday nights. This continues until the early morning, always up to three A. M. and creates a bedlam of noise, by the blowing of horns, loud conversations and frequent starting of automobiles, all of which prevents the appellees from getting their required rest and sleep. The bill of complaint asks that the appellant be permanently enjoined from maintaining the electric lights, permitting the playing of the nickelodeons, particularly after ten P. M., and from making possible the noises emanating from the parking lot on the premises after ten P. M. and from otherwise conducting its business operation so as to constitute a nuisance.

After answer had been filed, testimony was taken at length, the case consuming approximately eight days. At its conclusion, the Chancellor found that the appellees had been materially injured by the operation of the restaurant in the manner in which it was conducted between twelve o’clock mid-night and three A. M., and passed a decree enjoining the appellant. This decree, as will hereinafter be shown, not only generally enjoined the operation of the business in such a manner as to interfere with the reasonable and comfortable enjoyment of their property by the appellees, but set out certain specific prohibitions and regulations for the purpose of remedying the objectionable conditions. From the decree, this appeal is taken. ³⁵² The law has been long settled that an individual may file a bill to restrain the continuance of a public nuisance if it injures or impairs the value of his property.

One of the early English cases was Soltau v. De Held, 9th Eng. Law & Eq. 104, in which the vice chancellor enjoined the ringing and tolling of bells in a chapel adjoining the dwelling of the complainant. This case and a number of other English and American authorities are cited in the opinion of Judge Krebs, delivered in the Circuit Court for Baltimore City, and reported in full in the case of Hamilton v. Whitridge, 11 Md. 128 , at pages 130 to 141, 69 Am. Dec. 184 .

See also City of Georgetown v. Alexandria Canal Company, 12 Pet. 91, 9 L. Ed 1012, where the Supreme Court pointed out that any owner of property affected by such a nuisance, so that he suffered a special damage, could maintain an action in a Court of Equity. This doctrine is not applicable to public nuisances alone. It applies also to any situation where the use of property by one person damages or injures another. In the case of Scott v. Bay, 3 Md. 431 , (an action of trespass on the case) decided nearly 100 years ago, this Court said “It is a rule of the common law, that a man should so use his own property as not to hurt or injure another, and therefore if one carry on a lawful trade or business in such a manner as to prove a nuisance to his neighbor, he must answer in damages.

There are many cases in the books where this doctrine has been applied, and among the number are those where a man erects a smith’s forge, swine-sty, lime-kiln, tallow-furnace, machine-shop, quarry or privy, so near the dwelling-house of another as to render it unfit for occupation. Brady v. Gill, Lutw. 69, Aldred’s Case, 9 Coke, 58; Jones v. Powell, Hut. 135; Morly v. Pragnel, Cro. Car. 510; Rich v. Basterfield, 56 Eng. C. L. 786; Fish v. Dodge, 4 Denio [N. Y.], 311 [ 47 Am.

Dec. 254 ]. And, especially, for the general principles applicable to this case, the court would refer the case of Hay v. Cohoes Company, 3 Barb., N. Y., 42.” ³⁵³ In the case of Adams v. Michael, 38 Md. 123 , 17 Am. Rep. 516 , which was an application for an injunction to prevent the erection of a factory which it was alleged would become a nuisance, the Court refused injunction because the allegations in the bill were not specific. The bill was dismissed without prejudice to a right to bring a better complaint.

But Judge Alvey, who delivered the decision in that case, said “There is no question or difficulty in regard to the principle invoked by the complainants in this case. The power to interfere by injunction to restrain a party from so using his own property as to destroy or materially prejudice the rights of his neighbor, and thus to enforce the maxim, “sic utere tuo ut alienum non laedas,” is not only a well established jurisdiction of the Court of Chancery, but is one of great utility, and which is constantly exercised. Indeed, without such jurisdiction, parties would, in many cases, suffer the greatest wrongs, for which actions at law would afford them no adequate redress. It is not every inconvenience, however, in the nature of a nuisance to a party’s dwelling, especially in a large commercial and manufacturing city, that will call forth the restraining power of a Court of Chancery by injunction.

To justify an injunction to restrain an existing or threatened nuisance to a dwelling-house, the injury must be shown to 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. Unless such a case is presented a Court of Chancery does not interfere. It must appear to be a case of real injury, and where a court of law would award substantial damages. Walter v. Selfe, 4 De G. & Sm. 323; Jackson v. Newcastle, 33 L. J. Ch. 698; Soltan v. De Held, 2 Sim., N. S. 159; Kerr on Inj. 350.

Where, however, such is shown to be the case, the power of the court is clear, and it will interpose by injunction.” In the case of Bonaparte v. Denmead, 108 Md. 174 , 69 A. 697, 701 , an injunction against the conduct of a stable was refused, but in the course of the opinion the Court repeated the statement from Metropolitan Savings ³⁵⁴ Bank v. Manion, 87 Md. 68, 81 , 39 A. 90 , to the effect that a stable, whether used for livery purposes or for private convenience, may sometimes become a very great nuisance and source of discomfort “against which the courts would not fail to grant relief.” The same general doctrine was repeated in Hamilton Corporation v. Julian, 130 Md. 597 , 101 A. 558 , 7 A. L. R. 746, in which an injunction was sought against the erection of a bowling alley. A case, similar in many respects to the one before us is that of Meadowbrook Swimming Club v. Albert, 173 Md. 641 , 197 A. 146, 148 . In that case this court, quoted in toto the opinion delivered by Chief Judge Samuel K. Dennis, in the Circuit Court of Baltimore City,, in which a number of decisions are cited. Judge Dennis concluded his opinion in the following words: “It can scarcely be argued that any habitual noise (whether produced by skilled musicians led by the frank and cultivated leaders who testified as here, or by domestic animals, as in Singer v. James, 130 Md. 382 , 100 A. 642 ) which is so loud, continuous, insistent, not inherent to the. character of the neighborhood, and unusual therein, that normal men, women, and children, when occupying their own homes, however distant, are so seriously incommoded that they cannot sleep, study, read, converse, or concentrate until it stops, is not an unreasonable, unlawful, invasion of their rights.” The latest case which discussed the earlier decisions was that of Hart v. Wagner, 184 Md. 40 , 40 A. 2d 47 .

The question before us is well expressed by Judge Alvey in the case of Dittman v. Repp, 50 Md. 516 , 33 Am. Rep. 325 , where he said “In all such cases, the question 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, and of ordinary tastes and habits, and as, in view of the circumstances of the case, is unreasonable and in derogation of the rights of the complainant.” ³⁵⁵ It is true that there are certain inconveniences and discomforts incident to living in a city or in a thickly settled suburban community. These discomforts must be endured as part of the privilege (or at least of the fulfillment of the desire) of living in close proximity to other people. But these discomforts must not be more than those ordinarily to be expected in the community, and incident to the lawful use of the offending property or business.

If they exceed what might be reasonably expected and cause unnecessary damage, or annoyance, then the Court in an appropriate case, will act. See Dittman v. Repp, supra; Hyatt v. Myers, 73 N. C. 232 , quoted with approval in Gallagher v. Flury, 99 Md. 181 , 57 A. 672 , and Lohmuller v. Samuel Kirk & Son Co., 133 Md. 78 , 104 A. 270 . In a case involving the playing of baseball at an amusement grounds on Sunday, the Court of Chancery of New Jersey, after stating that noise is one of the necessary accompaniments of modern civilization, and that men as social beings must subject themselves to whatever annoyances reasonably arise out of necessary and useful operations, went on to say that noises which would not be adjudged nuisances if made in the day-time, would be declared nuisances if made at night, and during the hours which are usually devoted by the inhabitants of the neighborhood to sleep. Gilbough v. West Side Amusement Company, 64 N. J. Eq. 27, 53 A. 289 .

In a case in Florida the Supreme Court of that State enjoined a club located in a residential section of a community from operating public dances from nine-o’clock until two in the morning in a dance pavillion. The court, in that case, differentiated between dances in a building and dances in the open air, and confined the injunction to those continuing after the time that people were usually asleep. Bartlett v. Moats, 120 Fla. 61 , 161 So. 477 . In the present case the record shows that the Townsend property is across the Frederick Road from the appellant’s property.

The Calk property adjoins it, and on the other side of the Calk property is the Gathmann ³⁵⁶ property. These appellees all live in their properties, although the Townsends have an antique shop, the Calks have a tea room and the Gathmanns have a research