Lurssen v. Lloyd

Roberts, J., delivered the opinion of the Court. This action was brought to recover damages for a nuisance. The appellee is the owner and occupier of the premises known as No. 418 W. Conway street, in the City of Baltimore, and the appellant the owner and occupier of the premises Nos. 414 and 416 in the same street. The former dwelt in his premises, and rented out rooms to lodgers — the latter occupied his premises as a home, and was at the same- time engaged in the manufacture of cigar, and other light wooden boxes, using a steam engine and boiler in connection with his business.

The evidence on the part of the appellee, shows that the use of said engine and boiler, produced loud and disturbing noises and annoying vibrations on his premises, and that large quantities of steam, oppressive smoke, dust, soot, ³⁶⁶ and cinders came from appellant’s premises and settled on those of the appellee, and entered his house, injuring the same, and causing tenants to leave his premises, and causing appellee and his family great disturbance and discomfort. The evidence further shows that the smoke and soot from the engine entered the house of appellee, rendering it unfit for comfortable occupation, and also fell in his yard, making it unfit as a place of washing and drying the clothes of the family; and further proved that the said nuisances created by the appellant greatly depreciated the value of the appellee’s premises, and very much reduced their rental value. The evidence submitted on the. part of the appellant was in substantial denial of that which had been offered by the appellee, with the additional proof that he used the best appliances to prevent the escape from his premises of smoke, steam, cinders, and dust. In rebuttal the plaintiff offered evidence showing that the neighborhood was long built up, and was originally one used exclusively for domestic residences, and the factories, save one, are in other squares, and separated at intervals.

The appellant, then offered as testimony in the cause, the original papers in the case of Mitchell vs. Lloyd, in the Circuit Court No. 2, of Baltimore City, which contained a mortgage on appellee’s property on W. Conway street, mentioned in the evidence,, including all the papers, and proceedings in said cause, showing a regular foreclosure of said mortgage, and final ratification of the sale of said property to the mortgagee. This offer was objected to and the objection sustained. The action of the Court upon the objection presents the only exception to the admissibility of evidence. We think the Court committed no error in' refusing to admit this testimony; it certainly was not offered in its proper order.

If it was relevant and proper to be considered by the jury, the defendant should have tendered the same when he pres ³⁶⁷ sented his testimony in chief. Not having done so, he had no just cause for complaint that the Court refused to receive it when offered. But the testimony was clearly irrelevant. The fact that the property had been sold to the mortgagee, did not prevent the mortgagor, still in possession, from maintaining his action to recover damages for the injury