Livezey v. Town of Bel Air

Shehan, J., delivered the opinion of the Court. During the year 1935, the town of Bel Air, a municipal corporation, constructed a general system of sanitary sewers and built a disposal plant in connection therewith, under the authority contained in the Acts of 1927, chapter 254, and chapter 1 of the Acts of the Special Session of 1933. In these acts, the corporation is author ⁵⁷⁰ ized and empowered to acquire by condemnation such property or rights as are necessary or proper for them to possess in the construction of the sewer system and disposal plant. The plant is situated on lands near the property of Robert H. Livezey, the appellant, and is located on a stream of water known as Bynum’s Run, which courses through the meadow and pasture lands of the appellant, who filed his bill of complaint against the corporation, alleging: “That he is the owner of two tracts or parcels of land situate and lying in the Third Election District of Harford County, State of Maryland, and near the corporate limits of the Town of Bel Air, containing one hundred and eighteen (118) acres of land, more or less, upon, which said tract of land he operates a farm and dairy, and has so done for more than fifteen years past; that a large part of said tract consists of valuable pasture land upon which your Orator grazes a large herd of milk cows, the produce of which herd is sold for distribution to and consumption by the general public; and said pasture land is also used for grazing horses, mules and other domestic stock and animals; that Bynum Run, a living, natural, fresh water stream flows through the plaintiffs’ property and through said pasture land for a distance of more than one-third of a mile, and said stream has flowed through said property during all the years of the plaintiff’s ownership thereof and for so many years theretofore that the memory of man runneth not to the contrary; that, prior to the wrongs hereinafter complained of, said Bynum Run was a stream of pure, fresh water, which was used by your Orator in the management and operation of his said farm and dairy, for the watering and caring for of all domestic stock on said farm, and for all general farm and dairy purposes.” There are further allegations in the bill, charging that irreparable loss and injury has been done the plaintiff, and that because of the nature of the damages there is not an adequate remedy at law.

The bill contains a ⁵⁷¹ prayer for an injunction restraining the defendants from polluting and contaminating the stream, and a prayer for general relief. The essential allegations of the bill, relating to the pollution of the stream, are denied in the answer. The relief prayed was denied by the chancellor, and the bill dismissed, and from the decree this appeal is taken. The questions here presented are: First, do the effluent and substances discharged from the disposal plant into the stream contaminate and pollute it as alleged; second, does that discharge cause such harm to the appellant’s property interests as warrants relief by injunction?

Testimony at great length was taken by the complainant to support the allegations of the bill, and substantially all the persons living along the stream, from the disposal plant for a considerable distance, testified as to its polluted condition. Many of them described the foul and offensive condition of the stream and the odors at times arising therefrom, the annoyance and injury caused thereby, both to persons living along it and to horses and cattle that graze in the meadow, and the total destruction of fish therein. They described too the effect of the pollution on the use of the stream for bathing and fishing, watering of horses and cattle, the health of cattle watering therein, and on the health of children who drank milk from such herds, and that testimony is not contradicted by any witness living in that vicinity. The conditions thus described constitute an actionable nuisance.

Taylor v. Baltimore, 130 Md. 133 , 99 A. 900 , and cases there cited. In that case, it is stated that (page 905) : “The nuisance may consist in: (1) The pollution of the water to the injury of a riparian owner; * * * (2) the pollution of the air by creating noxious odors; or (3) the deposit of filth on the banks of the stream or pond.” All such acts are alleged and, by the weight of testimony, proven in the instant case. It is further shown that, prior to the installation of the sewer system and the building of the disposal plant, the conditions complained of did not exist to the same ⁵⁷² degree. It was further shown that, when the cattle weré removed from the meadow through which the stream flows to other pasture lands, they recovered from their sickness and general bad condition, as did the children who drank their milk.

The condition of the water of the stream, and its general appearance and condition as set forth in the evidence, was further described by Dr. William B. D. Penniman, a chemist. His testimony in part was that: “The suspended organic matter was extremely high, and that resulted in a condition of affairs that was certainly, from time to time, as has been described by the various witnesses that I have had occasion to listen to since I have been in court here. I have heard all the witnesses testify as to the material conditions of the stream, and since that first visit I have again gone over the stream—yesterday in fact—and verified the evidence that the water in the stream, in spite of the efforts made, has not been entirely purified. It is contaminated because the black floating material in the sewage disposal plant gets into the stream, occasionally, and, when it does get into the stream, that is sufficient to contaminate it.

There is sewage matter on the bank of the stream along this property (here indicating) * * * I walked this stream from end to end and have a general familiarity with its character, and it is as pretty a country stream as we have. In the comparative quiet stretches of the water, there is evidence of a deposit of sewage material, which only awaits the right condition in temperature to again become active and give rise to an offensive condition—offensive to man, beast, and fishes of the stream. At the present time the stream is badly contaminated below the plant; and, as far as I can say now, I am certain that it will continue to be in that shape unless there is a radical change in both the method of operation and the plant itself.” This witness further testified: “Q. You have heard the witnesses describe the condition of that run since the operation of the Bel Air sewage disposal plant? A. Yes.

Q. Are you able to say from your examination ⁵⁷³ and observation of that run, that the condition of this stream as described by these witnesses is the direct result of the effluent discharged into this stream from the Bel Air sewage disposal plant? A. I am absolutely certain of that. Q. Are you certain that the condition is caused by the Bel Air sewage disposal plant? A. Yes, sir.” The polluted condition of the stream complained of existed from the time of the construction of the sewers and disposal plant, in December, 1934, to the time of the filing of this bill, in December, 1936, and continued until the taking of the testimony and the hearing before the chancellor, in September, 1937.

The only witness offered on the part of the defendant was Dr. Abel Wolman. He testified, in effect, that the system in question was constructed under the supervision of the State Board of Health, of which he was chief engineer. He stated that the plant is sufficient in size and capacity to dispose of the sewage of the town, and, if properly managed, and operated, the conditions complained of could not occur. But he did not deny that the conditions, as shown by the witnesses for the plaintiff, did exist, nor did he contradict the findings of Dr. Penniman, but in most cases confirmed them.

Dr. Wolman dealt with what could or could not be done rather than that which was being done, and the damage that had been occasioned. His testimony was quite lengthy and should not be repeated in full in this opinion, but some of his observations and conclusions may be set forth. The polluted condition of the stream at the time of the hearing was not questioned by him, but rather, in support of that and other facts, he described how such conditions could be brought about “during the tuning up period of the plant,” but this condition of the stream had lasted for about two years, according to the undisputed evidence in the case. And it could have occurred by inefficient management and want of proper attention, so we have the cause and effect of some condition at the plant, the one giving support to the other, but both contributing to the injury of the appellant. ⁵⁷⁴ It was admitted that from the time the plant was put in operation in December, 19.34, until December, 1936, it did discharge into Bynum Run an effluent of a quality that probably did pollute the stream, and that the two elements contributing to this was the tuning up of the plant and the inefficient operation of it, and that if the plant was inefficiently operated it would cause trouble.

Dr. Wolman’s opinion was that the plant, at the time of the taking of testimony and the hearing had, was efficiently operated, and that the appellant was not being injured by the condition of the stream, but the value of his opinion is affected by the fact that he had not observed the stream below the plant. On the other hand, Dr. Penniman had observed the stream above and below the disposal plant, and had also