Hendrickson v. Standard Oil Co.

Urner, J., delivered the opinion of the Court. The bill of complaint in this case alleges in the first and second paragraphs that the plaintiff is the owner of leasehold estates in five lots of ground in Canton, Baltimore County, improved with buildings of which four have heretofore been occupied as residences and one has been used both as a saloon and dwelling. It is alleged in the third paragraph of the bill that the defendant, a corporation engaged in the manufacture, sale and shipment of kerosene, gasoline, crude oil and the various products of petroleum ⁵⁷⁹ and other mineral oil, laid and maintains certain pipe lines, for the conveyance of oil, in the street abutting upon the plaintiff’s property, and that the lines are so constructed and operated that large quantities of crude oil and other substances leak therefrom and percolate through the intervening soil into and upon the premises of the plaintiff, giving rise to disagreeable, noxious and unhealthy odors, and that in constructing its pipe lines the defendant so changed the grade of the street that the surface water from the plaintiff’s and other adjacent lands, which had always from time immemorial been accustomed to flow down, over and across the street, was in consequence thereof made to flow over, into and upon the plaintiff’s ground, so that the buildings thereon are rendered mouldy and unhealthy, the cellars flooded with oily and foul-smelling water, the walls and foundations have become decayed and undermined, and the houses unfit for habitation or any ordinary or reasonable use, and so that the plaintiff was compelled to remove from one of the houses, which had been occupied by her as a home, by reason of ill-health caused by the conditions described, and others mentioned later in the bill, of which conditions the plaintiff ■complained to the defendant, but without avail. The fourth paragraph of the bill avers that the defendant operates a factory, near the land of the plaintiff, for the manufacture of its products, and that it wrongfully and in utter disregard of the plaintiff’s rights, causes large quantities of noxious, offensive and injurious gases and vapors to be emitted from its factory and to spread over and upon the plaintiff’s premises, and to permeate and taint the air, so that the plaintiff and her tenants, in the occupation of her houses, become sickened, and the reasonable enjoyment of her property is thereby prevented.

It is charged in the fifth paragraph that immediately in front of the plaintiff’s lots, on South Clinton street, the defendant maintains a large and unsightly tank,- holding many thousands of gallons of oil, and now containing many gallons ■of gas oil, a highly explosive and dangerous fluid, which is ⁵⁸⁰ pumped into the tank through the pipes located beside the plaintiff’s property, and that adjacent to the tank there are stored by the defendant thousands of oil barrels, without covering of any kind and surrounded by a wire fence, and at the rear of the plaintiff’s premises the defendant maintains a large shed for the storage of grease, oil and other inflammable substances, and, as the plaintiff is advised, the storage of such highly explosive and inflammable oils, and other petroleum products, greases and oil barrels, so close to the plaintiff’s dwelling houses, and those of other persons, constitutes a public nuisance, and by reason thereof her property is greatly damaged, rendered less valuable for dwelling purposes, difficult to rent and dangerous for occupancy in the event of fire or lightning. By the sixth paragraph of the bill it is alleged that as a result of the conditions previously described the plaintiff is deprived of the reasonable use and enjoyment of her property, is unable to reside there herself, or to secure desirable tenants, and is compelled to accept greatly reduced rentals, while, much of the time, the property can not be rented at all. The seventh paragraph avers that the defendant has recently purchased land adjacent to that of the plaintiff, and the latter is informed and believes that the defendant intends to construct in immediate proximity to the plaintiff’s houses a tank in which will be stored vast quantities of highly inflammable and explosive oils, whereby, if permitted, the value of the plaintiff’s property will be entirely destroyed. The bill concludes with the allegation that the plaintiff is without remedy save through the intervention of a court of equity, and prays that the defendant may be restrained by injunction from: (a) so operating or maintaining its pipes as to cause oil to flow into or upon the plaintiff’s property; (6) or so as to cause water to flow into, over and across the land of the plaintiff; (c) from storing any explosive oil or any highly inflammable fluid on its property adjacent to the plaintiff’s houses; (d) from continuing to store the large ⁵⁸¹ pile of empty oil barrels, mentioned in tbe bill, 'without- adequate measures to prevent them from being set on fire by accident or design; (e) from storing large quantities of greases, oils and other inflammable and explosive substances in the rear of the plaintiff’s property, without taking adequate measures against fire and its consequences; (/) from so operating its factory as to cause noxious gases or vapors to be emitted therefrom and to interfere with the reasonable use and occupation of the plaintiff’s buildings and premises.

There was also a prayer for general relief. The bill was accompanied by exhibits showing the sources of the plaintiff’s title. In pursuance of an order of Court providing for the issuance of an injunction, as prayed in the bill, unless cause to the contrary were shown by the defendant on or before a designated day, a demurrer to the bill and each of its paragraphs was interposed. After a hearing upon the demurrer, it was sustained as to the fourth, fifth and seventh paragraphs of the bill and overruled as to the remaining paragraphs.

Erom the order passed by the Court below to that effect the plaintiff has taken this appeal. The first question to be decided is whether an order sustaining a demurrer to only part of a bill of complaint is appealable. An appeal is allowed by statute in equity cases “from any final decree, or order in the nature of a final decree.” Code, Article 5, section 26. It is also provided that- “Whenever any court having equity jurisdiction shall refuse to grant an injunction according to the prayer of the bill or petition filed in the cause, an appeal may be taken from such refusal by any party aggrieved.” Ib. section 31.

The right of appeal from courts of equity exists' only in those instances in which it is expressly conferred by statute. Peoples v. Ault, 117 Md. 635 ; Dillon v. Ins. Co., 44 Md. 386 ; and in the case before us the appeal must be sustained, if at all, by reference to one or both of the provisions we have quoted. ⁵⁸² The fact that the order appealed from merely sustained the demurrer to the specified paragraphs of the bill, without dismissing the bill to that extent, does not affect the question as to the appealability of the order. In McNiece v. Eliason, 78 Md. 168 , there was an appeal from an order sustaining a demurrer to a bill of complaint in its entirety upon grounds which precluded the maintenance of the suit.

A motion to dismiss the appeal was filed upon the theory that the order was not final. In overruling the motion, this Court said: “It is true, this order does not in terms dismiss the bill, but that was its necessary result. It denied the relief sought, and there was no other course open to the appellant. Hazelhurst v. Morris et al., 28 Md. 71 ; Waverly Mutual Building Asso. v. Buck, 64 Md. 343 .” The present order, in sustaining the demurrer to the fourth, fifth and seventh paragraphs of the bill, without granting leave to amend, as the essential point of the objections urged could not be obviated by amendment, determined that the plaintiff was not entitled to maintain the suit with respect to the particular causes of injury to which those paragraphs referred.

In so far as the opportunity of securing relief by injunction from the conditions thus excluded was concerned, the order had the effect of virtually dismissing the bill. The case, however, was to proceed upon the allegations as to which the demurrer was overruled, and the inquiry is whether, in view of this fact, an appeal from the order sustaining the demurrer to part of the bill is premature. As repeatedly defined by this Court, “an order in the nature of a final decree,” from which an appeal may properly be taken, is “one which finally settles some disputed right or interest of the parties.” Chappell v. Funk, 57 Md. 472 ; Dillon v. Mutual Ins. Co., 44 Md. 395 ; Hill v. Reifsnider, 39 Md. 431 ; Ware v. Richardson, 3 Md. 555 .

It was held in Peoples v. Ault, 117 Md. 634 -637, that an order overriding a plea to part of a bill was not a proper subject of appeal. In that case the plea had attempted to set up the bar of the statute of limitations to a portion of the plain ⁵⁸³ tiff’s claim, and there was an answer filed as to the remainder. The order from which the appeal was taken overruled the plea with leave to the defendant to file an amended or supplemental answer. The appeal was dismissed on the ground that such an order was not final in its nature.

It was not an ultimate determination of any right or liability involved in the suit. Notwithstanding the ruling on the defendant’s plea, the decree eventually passed in the ease might have been wholly in his favor. The same considerations apply to an order overruling a demurrer to part of a bill. Peoples v. Ault, supra; Somerset Rapid Transit Company's Case, ante page 371.

By such an order the scope and direction of the case may be affected, but the question of actual liability is left for adjudication in the final decree, upon appeal from which an interlocutory order of that character is reviewable. Code, Article 5, section 28. The rule has been adopted, however, that an order overruling a demurrer to an entire bill is appealable upon the theory that such an order finally determines the right of the plaintiff to proceed with the case stated in the bill, and imposes upon the opposite party the necessity of making defense. Chappell v. Funk, supra; Hecht v. Colquhoun, 57 Md. 563 ; Hyattsville v. Smith, 105 Md. 318 ; Darcey v. Bayne, 105 Md. 365 .

An order overruling a demurrer to part of a bill of complaint is altogether different in its effect from one which sustains such a demurrer, especially where, as in this case, the specified causes of injury from which relief is sought are distinct and separable. If the demurrer filed by the defendant had been overnded as to the fourth, fifth and seventh paragraphs of the bill, the plaintiff’s right to an injunction against the continuance of the conditions therein alleged to exist would have remained undetermined. A further decree would have been necessary to afford her the desired