Jackson v. Shawinigan Electro Products Co.

Boyd, C. J., delivered the opinion of the Court. The appellant sued the appellee for damages alleged to have been sustained by him from the operation of a manufacturing plant in the Twelfth District of Baltimore County, known as a ferro silicon plant for the manufacture of ferro silicon and other products. There are two counts in the declaration. The first, after referring to the ownership of three properties by the plaintiff, alleges that subsequent to his acquisition off them, to wit, in 1915, the defendant erected the plant immediately adjoining two of his properties and near the third, and that since its erection the defendant has operated it continuously day and night; that there are discharged from it large clouds of offensive and unwholesome vapors, noxious fumes and gases and disagreeable soot and smoke, dust and other matter upon the plaintiff’s properties; that it also causes a large amount of noise and vibration, and that said offensive and unwholesome vapors, etc., are very injurious to health, as well as offensive to persons of ordinary sensibilities; that said properties were well adapted to improvement for dwelling1 houses and prior to the erection of the plant, land in the immediate vicinity, ¹³⁰ some of which was also owned, by plaintiff, was used for such purposes.

It is then alleged that by reason of the offensive and unwholesome vapors and foul and disagreeable odors, noxious fumes and gases, soot, smoke, dust, etc., “it is practically impossible for the plaintiff to develop* his said properties for dwelling house purposes, and the same are rendered far less .desirable for dwelling or other building purposes than they would otherwise be, and the plaintiff is deprived of the profits and advantage that would reasonably inure to him from the development and improvement of his said properties, and the value thereof is seriously impaired, to his great loss and damage.” The second count is the same, excepting the nuisance complained of is in -reference to a glaring light of great intensity, etc. After this suit was brought, an agreement was entered into between the parties by which it was agreed that in the trial of the case the plaintiff was to be treated as the owner in fee of all the properties, and that the case should be tried on the theory of a permanent nuisance^ and all evidence which either party desired to produce which is proper and applicable to a suit involving damages arising out of the erection or maintenance of a permanent nuisance may be introduced. There are 37 bills of exception relating to* the admissibility of evidence and one to the ruling on the prayers. The Court granted two prayers at the conclusion of the plaintiff’s testimony—the first, that there was no evidence legally sufficient to entitle the plaintiff to recover under the pleadings of the first count, and the second being the same, except it was applicable to* the second count. From a judgment on the verdict rendered in accordance with those prayers this appeal was taken.

There can be no doubt that there was legally sufficient evidence of such conditions as would amount to a nuisance, if the property of the appellant was improved, but the appellee contends that the evidence does not show actual physical discomfort or a tangible visible injury to the property, it being ¹³¹ unimproved, and hence it claims that there can be no recovery. There are authorities which have announced the rule in such terms as give some ground for that contention, but when they are applied to such conditions as are alleged to exist in this case there can be no difficulty about them. The attorneys for the appellee quoted from sections 511 and 640 of Wood on Nuisances at some length, but the next paragraph of section 511 concludes as follows: “Where there are no buildings upon the premises, but the land is laid out into building lots which, by reason of the nuisance, are reduced in value, a recovery may be had for the difference between the value of the lots with the nuisance there and their value if no nuisance existed.” In the note are cited Peck v. Elder, 3 Sandf. (N. Y. Sup.

Ct.) 126, and Dana v. Valentine, 5 Metc. (Mass.) 8. If that was not so, great injustice would be done owners of vacant land who had begun or intended to develop it. Of course, the fact of the properties of the plaintiffs being improved is of importance in nuisance cases, as wlieu they are improved the plaintiffs can recover certain damages which they can not recover when unimproved, hut why a defendant should be made liable to- A-, who has a house ou his lot, but not to B., whose lot is unimproved, if the nuisance in fact lessens the value of B.’s lot, or prevents him from selling it, is not easy to reconcile with the general principle of law that holds the owner of property responsible for so using his property that he injures others.

The plaintiff bought a tract of land in 1910, which was between Baltimore street and Orleans street, on the westerly side of Eighth street. He built 27 houses between Eairmont avenue and Eavette street, which fronted on Eighth street, and has sold all of them. He still owns the rest of the property fronting on Eighth street, some of which is on the northerly and the remainder on the southerly side of the houses he built. He also has a strip' back of the houses he sold and a lot on Baltimore street near Eighth.

Hone of the property still owned by him has been improved, but it would bo ¹³² remarkable if he was prevented from.’' recovering merely because he has sold the- improved part, and we do not understand that to be the law of this State. In Baltimore v. Fairfield Im. Co., 87 Md. 352 , tire city was enjoined from placing and keeping on a twenty-acre tract of land by it a woman afflicted with leprosy. That tract adjoined the property of the Fairfield Improvement Co., which had been laid off in building lots.

Many of the lots had been sold and quite- a number of houses had been' built in the vicinity of the city’s land. If the improvement company still had any improved property, it does not so appear in the record, and was not relied on in the case, but in the bill it was alleged that it still owned the lots which had not been sold. There is nothing in the opinion to- indicate that any distinction was made between improved and unimproved property as the ground for relief. It was said by Chiee Judge McShekry : “The record abundantly shows that the Fairfield Improvement Company’s property will be seriously lessened in value— that residents of the vicinity will abandon their homes—if this unfortunate and afflicted woman should be placed where the city proposes to confine her.” In Belt R. R. Co. v. Sattler, 100 Md. 306 , the plaintiff owned two- lots of ground— one fronting 100 feet and the other 50 feet on Charles street.

There was a house and lot between those two lots which the plaintiff lived in but did not own, and the suit was for injury done to the two vacant lots. They were used as a garden and lawn,' and contained shade trees, walks, fruit trees, flowers, etc. Judge Fowxer., in the course of the opinion, after refeiring to Garrett’s case, 79 Md. 277 ; Beaney’s case, 42 Md. 117 ; Webster’s case, 81 Md. 529, said: “Why there should be any difference made in the right to recover if there is an actual invasion, and when the damage is only consequential, it is difficult to understand, for the damage, loss, inconvenience and discomfort to the owner .may be as great in one case as in the other. In Guest v. Church Hill, 90 Md. 689 , we held that the overflowing of the land of an individual ¹³³ with -water is cm, invasion thereof; and the fact that smoke, noise and vapor caused the injury here can make no> difference, certainly none in the right to recover.” It was proven in that case that in the operation of the railroad smoke and gases were drawn out of two tunnels, between which there was an open cut which plaintiff’s property adjoined, and the plaintiff was also subjected to an unusual degree of vibration. It was held that he was entitled to recover damages for the consequential injuries so occasioned, and that testimony of witnesses who were acquainted with the property and had observed the effects of the alleged tort was admissible to prove tbe fact that the smoke, vapors and vibrations caused a diminution in the value of the plaintiff’s property.

Rot only damages to the trees, flowers, etc., were allowed, but damages for the reduced value of the land. That will be more clearly seen by reference to the case between tbe same parties in 102 Aid. 505, being- the second appeal to this Court. Jubge "BubkEj in speaking of the damages, said: “The interference with the reasonable and comfortable use and enjoyment of the property, and any material injury to the property caused by the nuisance, loss of sales or rentals may he, under the facts of the case, proper items of damage for which recovery should he had. In order to prove the extent of- loss on sales or rental the plaintiff may be permitted to' prove the market value of his property before and after the injury complained of, as that would he the best, and perhaps the most satisfactory, way to enable the jury to judge of the testimony upon a claim for such damages; or such evidence may be receivable to prove the serious nature or character of the wrong complained of, although to introduce such evidence in a case of temporary depreciation in the value of ■property, when no loss of sales or rental is shown, would tend to complicate the case and confuse the issue.” Again it was said that the testimony of witnesses who were acquainted with the property and observed the injurious effects caused thereto by the smoke, gas, cinders, etc., emitted from the ¹³⁴ defendant’s engines was properly admitted.

In discussing a prayer which was. held to he too general and indefinite, it was said: “If the jury believed the plaintiff’s evidence, he was entitled to recover damages for the interference to- the reasonable and comfortable enjoyment of his property caused by the defendants, and also for any-material injury or destruction of his property.” It must not be forgotten that in that case there was no- permanent injury involved, and the damages could o-nly be recovered for injuries up to the bringing of the suit, while this case, as shown above, was to be tried on the theory of a permanent nuisance. It will be seen from the opinion of Judge Bukee that the fact that there was only claimed to- be a temporary diminution in the market value of the land was important. Where the suit is for the permanent injury evidence of the market value of the property before and after the injury complained of is proper, as shown from the quotation above. See also quotation from section 511 of Wood on Nuisances, supra.

It would be difficult to prove the damages with reasonable accuracy in any other way, and if it be true that the defendant is permanently injuring the property of the' plaintiff by the smoke, gases and other things described by the witnesses, we can see no valid reason for not permitting it to be done. That case unquestionably establishes the doctrine that there can be a recovery for a. diminution of the value of real estate, o-n which there were trees, flowe-rs, etc., but no houses, and it seems to us it would be utterly illogical to- hold that there can be recovery for the damage to the real estate under those circumstances, but can not be merely because it is not shown that there are trees, flowers and such other things as were on the Sattler property. There is ample evidence to- show that before the defendant’s plant was put in operation the property was suitable and available for dwelling houses. During or after 1910 and before 1915, when the plant started, the plaintiff had erected and sold twenty-seven dwelling houses in almost the middle ¹³⁵ of his property facing on Eighth street, and the depth of the property on that street is such that it would likely be more available for dwelling's than for other purposes.

If the conditions shown by the testimony are the result of defendant’s plant, as the evidence tends to prove, and those conditions are to be continued indefinitely, as the agreement seems to provide for, then clearly there is evidence of an invasion of plaintiff’s property by the smoke, gases and other things spoken of, and it is said in the Sattler case, in 100 Md., supra, that such things may be as much an invasion as overflowing land with water, so far as the right to recover is concerned. Mr. Merriken testified that “The smoke was dependent largely on the wind, and some came in this direction and that direction, but it seems to precipitate dust and dirt all over this property, depending altogether upon the nature and character and direction of the wind and the atmosphere.” Other witnesses testified to the same effect. Can it be that no relief can be granted the owners of vacant land when clouds of such substances are constantly cast upon