Myers v. City of Hagerstown

Henderson, J., delivered the opinion of the Court. This appeal is from a decree of the Circuit Court for Washington County sustaining a demurrer to and dismissing a bill of complaint filed by neighboring property owners against the proposed use of a sixty-two acre farm, owned by the City of Hagerstown and located about six miles from the City limits, for the dumping and disposal of garbage. It may be noted that the bill does not challenge the authority of the City to own, or use for its public purposes, the farm in question. Nor does the bill allege that such use has been commenced by the City, but merely that the City intends to use the farm for the purpose in the future.

The bill alleges that the City operates a garbage and trash disposal system within the City limits, and that in recent years “said dump has become an increasing nuisance and threat to the health, comfort and safety of the citizens of Hagerstown * * * having become infested with rats and vermin and giving forth vile fumes, smoke and odors, and being constantly afire from burning waste matter producing gaseous stenches, dust and soot.” The bill also recites that about two years ago the City caused an engineering study to be made of the existing dump, and that a ³¹⁴ report based on the study disclosed that the practice of burying garbage at that site threatened the pollution of the subterranean water supply, and recommended that the dump be relocated. Following this report, the City purchased the farm in question. The crucial allegations of the bill seem to be that the proposed use of the farm will disturb the peaceful enjoyment of the appellants’ properties, in that “a more or less continuous stream of garbage and refuse bearing traffic” will pass their properties, and that the transfer of the dump will threaten health “through possible pollution of their sources of water supply, and the unleashing of rats, vermin, * * * vile fumes and various odors * * It is also alleged that there is a threat that there will be a continuous dropping or spilling of waste, refuse and garbage along the access roads. It is further alleged that the existing dump is acknowledged to be a public nuisance and a nuisance per se, and would be no less a nuisance if located as proposed.

We think the demurrer was properly sustained. If the existing dump is in fact a public nuisance, as alleged, it does not follow that the use of the farm in question will necessarily amount to a public nuisance. Not only does the bill fail to allege that the City proposes to use the same methods, or lack of methods, of disposal at the new site, but the reference to' the report indicates that the main purpose of the relocation is to permit methods of