Longley v. McGeoch

¹⁸⁴ Pearce, J., delivered the opinion of the Oourt. This is an appeal from a decree of the Circuit Court of Baltimore City, making perpetual an injunction previously granted by that Court, and also adjudging both defendants to be guilty of contempt in violating the terms of the preliminary injunction outstanding, and ordering that the defendant corporation forfeit and pay a fine of one hundred dollars as a penalty for having violated said injunction. The three plaintiffs are residents of a suburban settlement in Baltimore County, called Bognel Heights, just beyond the western limits of Baltimore City, and are owners of real estate located there. The defendant, William M. Longley, is a resident of Baltimore City, and is president of the other defendant, The W. M. Longley Quarry Company, a body corporate, with its principal office in Baltimore City.

William M. Longley is the owner of a tract of land adjacent to the property of the plaintiffs, upon which is a quarry of stone which is operated by the W. M. Longley Quarry Company. The amended bill of complaint alleges that this quarry is distant about 900 feet from the dwelling of the complainant, Harry N. McGeoch, and from the dwelling of the complainant, Lewis Bihy, and about 600 feet from the water works of the complainant, William T. Pfeiffer; that there are a considerable number of other dwellings on said heights occupied by the families of the owners or tenants; that prior to February 15th, 1909, William M. Longley was operating said quarry under the name of the W. M. Longley Quarry Company, blasting and exploding by dynamite large quantities of stone for sale for various uses, and that frequent complaints had been made to him of the consequence of such blasting, and that he had been notified that unless he desisted from blasting in such a way as to throw rocks and stones upon complainants’ premises, proceedings would be taken to enjoin him, but he nevertheless continued to blast and to throw rocks and stones upon complainants’ property, injuring the same and endangering the lives of them and their ¹⁸⁵ families; that on February 15th, 1909, said Longley leased said quarry to said quarry company, which has ever since continued blasting in the same manner and with the same results almost every day in the week except Sunday, and frequently at intervals during the whole day, rendering it necessary at times for those in the neighborhood to seek some secure and protected place when the blastings are about to occur; that injury has been done to the property of complainants and others at the heights, and workmen there engaged in work have been compelled to quit their labor to avoid personal injury; that sometimes, both before and after February 15th, 1909, there was an attempt to give notice a few moments in advance of a blast, but such notice could not reach the residents of the Heights in time to enable them to protect themselves, even if the defendants could justify their blasting by such notice; that the complainants and their families cannot safely enjoy their lawns and premises or the avenues on the Heights on account of such blasting, which is a constant menace to life and limb, and an injury to their property rights.for which there is no adequate remedy except in equity. The prayer of the bill is, for themselves, and all others interested therein, and who may be made parties to the proceeding, for a perpetual injunction against each of the defendants prohibiting them and their servants from casting rocks and stones upon the premises of complainants and others similarly situated, and from so conducting said quarry as to interfere with the free use of the avenues and roads through said Heights by the complainants and any others entitled to use them, and for a preliminary injunction in the meantime, for the same purpose; and also for general relief. A preliminary injunction was issued June 11th, 1909, prohibiting said defendants or their servants or agents “from throwing or casting any stone, boulder or rock upon the portions of the property of Rognel Heights, located in Baltimore County, which the complainants and others similarly sit ¹⁸⁶ uated are entitled to use and occupy, and from the use of what is known as mud blasting, or from in any manner menacing or endangering the safety of the complainants, and all other persons residing in Rognel Heights and from carrying on the operations of said quarry so as to interfere with, the free use and passage by the complainants and all other persons on said Heights of the avenues and roads leading through said Heights, until the further .order of said Court in the premises.

The original bill was filed by Harry 1ST. McGeoch alone against Wm. M. Longley alone. To that bill a demurrer was interposed by the defendant on March 12th, 1909, and while that was pending, Wm.

T. Pfeiffer and Lewis .Bihy were by order of Court made parties plaintiffs. The grounds of the demurrer were three in number: First, that the quarry was wholly in Baltimore County, and, therefore, the Circuit Court of Baltimore City was without jurisdiction; second, that the prayer for relief was vague and indefinite and seeks the aid of a Court of Equity for persons unnamed and not parties to the cause; and third, that the prayer for process was not in accordance with section 147 of Article 16 of the Code, and,. therefore, bad in substance. This demurrer was overruled May 12, 1909, and a preliminary injunction granted, which was afterwards, on June 4th,. dissolved, it then becoming known that the quarry had been leased to the quarry company on February 15th, 1909, and it was, therefore, a necessary party. Thereupon, with leave of Court, the amended bill was filed on June 11th, making the, W. M. Longley' Quarry Company a co-defendant.

It does not appear from the Record that the demurrer to the original' bill was renewed to the amended bill, and we should not, therefore, notice it, but for the fact that the appellee in his brief has devoted several pages to its discussion, which suggests that it is possible the demurrer was again interposed, there being no docket entries embraced in the Record, and we shall, therefore, briefly consider it as if renewed to the amended hill, in which the prayer for relief is unchanged, ¹⁸⁷ but the prayer for process contains the name and residence of Wm. M. Longley, and the name and place of the principal office of the defendant corporation. Eirst.—Injunction operates in personam. If the person is within the jurisdiction it is not material that the subject matter may be without the jurisdiction.

This is the general rule, 22nd Cyc, 906; Miller’s Equity, section 570; Phelps’ Juridical Equity, p. 307; Carroll v. Lee, 3 G. & J. 504 ; Dorsey v. Omo, 93 Md. 74 ; Phelps V. McDonald, 99 U. S. 298 . Second.—The prayer for relief is definite and certain as to the plaintiffs named, and is not rendered vague and indefinite because it embraces such other residents of Rognel Heights as are alleged to suffer in like manner from that blasting complained of, and who may appear and be made parties to the proceedings. Such a prayer ought not to be condemned as bad practice. Third.—In the prayer for process in the amended bill, the third ground of the demurrer was met and obviated by setting out the name and residence of each defendant, and, treating this demurrer as to the amended bill, it was clearly correctly overruled.

Regarded merely as going to the original bill, it is not before us for review, and we are not called on to decide it now, though we may say the original bill, in its second paragraph, gave the name and address of the then sole defendant, and thus gave all the information that would have been given if repeated in the prayer for process. Webb v. Ridgely, 38 Md. 364 . Both defendants answered the amended bill at length, each denying that it- ever conducted the blasting at the quarry in such manner as to cause rocks and stones to be thrown upon other premises than their own, or to endanger the lives of any of the residents of Rognel Heights, or to in any . manner injure the complainants’ property. A great mass of testimony was taken before Judge Hiles in open Court, who, after argument, filed an opinion in which he made no reference to the law of the case, but treated, it as dependent wholly upon the facts, and made the injunc ¹⁸⁸ tion perpetual, aud imposed the fine for contempt as before stated.

The appellants’ counsel apparently concurred in the view that there was little law in the case, since he devoted 31 of the 33 pages of his brief to a statement of the facts alleged in the pleadings, and to a recital and analysis of the evidence. The appellees’ counsel, however in his brief has cited very fully the authorities, and we shall make brief reference only to such as declare the well recognized legal principles applicable to this case. In Scott v. Bay, 3 Md. 444 , it was held that where blasting was such as to keep all persons on or about the premises in constant fear and jeopardy of their lives, rendering a proper attention to business full of fear and danger, it would constitute a nuisance. In Hamilton v. Whitridge, 11 Md. 128 , it was held that a party injured by a public nuisance may apply for an injunction to prevent such nuisance, if its existence will cause a substantial prejudice to his property or the reasonable enjoyment of it; and in Woodyear v. Schaefer, 57 Md. 12 , that where the nuisance operates to impair the comfortable enjoyment of property, protection by injunction-must be given.

In Scott v. Bay, supra, it was held that “unless a party can show a right, either in the nature of a presumed grant or easement, or in some other mode, to use his property in a particular way, he cannot use it in that particular way, if it occasions injury to his neighbors in the quiet enjoyment of their legal rights and privileges, and it makes no difference whether precautions were used or not to prevent the injury complained of.”' In Dittman v. Repp, 50 Md. 523 , it was said, “the authorities are numerous that noise alone, if it bé of such a character as to be productive of actual physical discomfort and annoyance to a person of ordinary sensibility, may create a nuisance, and be the subject of an action at law, or an injunction from a Court of Equity.” An owner of property can not escape liability for a nuisance thereon by leasing it. “Where the owner leases premises which are a nuisance, or must, in the nature of things, ¹⁸⁹ become so by their user, and receives rent for them, then, whether in or out of possession, he is liable.” Owings v. Jones, 9 Md. 118 ; Albert v. State, 66 Md. 338 ; Metropolitan Bank v. Manion, 87 Md. 83 . Longley was a proper party defendant to this bill, notwithstanding the lease to the quarry company. In Brady v. Weeks, 3 Barb. 161 , it was said, “The writ of nuisance goes against the erector of the nuisance, and his alienee jointly. * * * The demise in such case affirms the continuance of the nuisance, and may be said to be a continuance of the nuisance by the lessor.” The fact that the complainant came to the nuisance is no defence. Susquehanna Fertilizer Co. v. Malone, 73 Md. 276 .

We have carefully examined all the testimony in the Becord, and we are of opinion that the case is governed by the principles above stated and that the learned Judge of the Circuit Court properly disposed of the whole case. There were fourteen witnesses sworn for the plaintiffs. Frederick W. Mirk, a member of the police force of Baltimore County, testified that he worked at Bognell Heights two years, 1908 and part